MEMORANDUM OPINION ORDER
JOAN B. GOTTSCHALL, District Judge.
Plaintiff Intellect Wireless, Inc. ("Intellect") brought this patent infringement action against defendants United States Cellular Corp. ("U.S. Cellular") and T-Mobile USA, Inc. ("T-Mobile") (collectively, "defendants"), alleging infringement of certain patents relating to the sending, transmission, and receipt of messages between wireless devices such as cellular telephones. This matter is presently before the court on defendants' motion for summary judgment.
Intellect also brought this suit against Virgin Mobile USA, Inc. and Helio, Inc., each of which has since been dismissed from this case with Intellect's agreement. (Doc. 112.)
I. BACKGROUND
Defendants are each in the business of offering wireless communications services. (Defendants' Statement of Undisputed Material Facts in Support of Their Motion for Summary Judgment ("Defs.' Stmt.") ¶ 2.) Intellect is a Texas-based corporation that specializes in commercializing inventions relating to wireless image messaging. ( Id. ¶ 1.) Among those inventions are U.S. Patent numbers 7,257,210 (the "`210 patent"), 7,266,186 (the "`186 patent"), and 7,305,076 (the "`076 patent") (collectively, the "patents-in-suit"), all of which are at issue in the instant motion. ( Id. ¶ 6.) Each of the patents-in-suit concerns the method of sending and transmitting picture and video messages between wireless devices. Each of the patents-in-suit includes method claims that refer to, inter alia, a "message originator" and a "message center." Some of the claims also refer to a "message recipient."
Since the defendants filed the instant motion, Intellect filed an Amended Complaint in which it restates its allegations regarding defendants' infringement of the patents-in-suit and also asserts that defendants infringed U.S. Patent number 7,349,532 (the "`532 patent"). The `532 patent is not at issue in the instant motion, and the court does not consider it when using the term "patents-in-suit" for the purposes of resolving the instant motion.
For example, claim 1 of the `210 patent, cited by defendants as illustrative of all of the claims at issue, states:
A method of communicating information from a
message originator to a
message recipient having a wireless portable communication device, comprising the steps of:
initiating a message from a
message originator to a
message recipient under the control of the
message originator as to when the message is sent to a
message center, the
message center being coupled to a communications network;
receiving at the
message center both
message originator information provided automatically by the communications
network as the caller ID identifying the telephone number of the
message originator, and a non-facsimile picture obtained from the
message originator prior to transmitting the caller ID to a wireless portable communication device; and,
causing the communications network to wirelessly transmit the caller ID and the picture from the
message center to the wireless portable communication device.
( Id. ¶ 15 (emphasis added).) The other claims at issue also use these terms. ( See id. ¶ 17 (quoting claim 18 of the `186 patent, which uses the terms "message originator," "message recipient," and "message center"); id. ¶¶ 19, 20, 21, 22 (quoting claims 1, 6, 12, and 19, respectively, of the `076 patent, each of which uses all three identified terms).)
II. LEGAL STANDARD
Summary judgment is warranted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2); Perfect Web Techs. Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1327 (Fed. Cir. 2009). Summary judgment is proper only when, "drawing all reasonable factual inferences in favor of the non-movant, the evidence is such that the nonmovant cannot prevail." Optium Corp. v. Emcore Corp., 603 F.3d 1313, 1319 (Fed. Cir. 2010).
III. ANALYSIS
Defendants argue that they cannot be liable for direct infringement because the subject patents, which require a "message originator," a "message center," and a "message recipient," cannot be infringed by a single actor. Intellect insists that defendants' motion is premature and, in any case, that the subject claims are susceptible to infringement by a single actor. The court examines each of Intellect's arguments in turn.
A. Whether Summary Judgment is Premature
1. Discovery
Intellect argues that summary judgment is premature first because it needs more discovery, specifically "depositions concerning issues such as the manner in which messages are initiated so as to be processed by Defendants' message centers." (Doc. 137 at 5.) However, Intellect plainly has failed to comply with the required procedure to assert its need for additional discovery as a basis for opposing summary judgment. Federal Rule of Civil Procedure 56(f) provides that a court may deny a motion for summary judgment in a case in which "a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition. . . ." Fed.R.Civ.P. 56(f). The Seventh Circuit has noted that a party's failure to file a Rule 56(f) affidavit warrants disregarding its asserted need for additional discovery. Chambers v. Am. Trans Air, Inc., 17 F.3d 998, 1002 (7th Cir. 1994). Intellect's counsel was reminded of this requirement at a hearing in which the court denied Intellect's motion to defer ruling on summary judgment until after claim construction occurred. (Doc. 145-2 at 3:11 through 4:2, 5:5-10; Doc. 135.) Without an affidavit that, consistent with Rule 56(f), sets out specific disputed factual issues on which Intellect needs specified additional discovery, the court declines to credit Intellect's contention that it needs discovery regarding the manner in which messages are initiated.
2. Multiple Summary Judgment Motions
Intellect also argues that defendants' motion is premature because Intellect amended its complaint to include the `532 patent, not at issue in the instant motion. ( See note 2 supra.) According to Intellect, the instant motion wastes judicial resources because the court cannot resolve all of the claims by resolving the instant motion. (Doc. 137 at 6.) This argument lacks merit for two reasons. First, Intellect sought and was granted leave to file its amended complaint only after defendants filed their motion for summary judgment. ( Compare Doc. 118 (motion for summary judgment filed Feb. 8, 2010) with Doc. 126 (motion for leave to file amended complaint, filed Feb. 10, 2010).) While the court casts no aspersion on Intellect's motivation in seeking amendment or the merits of its new allegations, a rule that summary judgment motions are premature by virtue of later-added allegations to an amended complaint would allow plaintiffs to
forestall rulings on timely and possibly meritorious motions for summary judgment. Intellect does not assert that it has amended its allegations regarding the three patents-in-suit at issue in the instant motion, but simply that its allegations regarding the `532 patent make summary judgment on the other three patents-in-suit premature.
Second, Intellect's argument of prematurity based on the amended complaint fails because, as Intellect concedes, the `532 patent contains many of the same terms at issue in the patents-in-suit; a ruling on the instant motion may limit the issues presented by the `532 patent, thereby promoting, rather than undermining, judicial economy.
3. Claim Construction
Intellect also contends that defendants' motion is premature because claim construction has not occurred in this case yet. (Doc. 137 at 2.) Intellect specifically contends that its interpretation of "initiating a message from a message originator" which appears, inter alia, in claim 1 of the `210 patent, quoted above, differs from defendants' interpretation. Intellect contends that messages are "initiat[ed]" by the software on wireless devices issued by defendants, while defendants contend that their subscribers, who are the users of the devices, initiate messages.
Defendants assert that Intellect litigated the same claims against another defendant in a different court in this district without asking for claim construction of the "initiating" term identified above. See Intellect Wireless, Inc. v. LG Elecs., Inc., No. 08 C 1350. Defendants' argument on this point is underdeveloped, as they provide no analysis of what similarities exist between the allegations in that case and this or what arguments were raised by defendants in that case. Nor do they cite any legal theory suggesting, let alone holding, that Intellect's asserted failure to ask for claim construction in that case bears upon the validity of its request for construction in this case.
A determination of infringement, or non-infringement, is a two-step analysis, in which the court first determines the scope and meaning of the patent claims asserted, and second compares the properly construed claims to the allegedly infringing device or process. Apex Inc. v. Raritan Computer, Inc., 325 F.3d 1364, 1370 (Fed. Cir. 2003). Claim construction is a question of law for the court to decide. See Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996). While the court construes the claims according to their ordinary and customary meanings, Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en banc), terms may have more than one ordinary meaning, or the term's ordinary meaning may not resolve the parties' dispute, O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008). In cases in which the parties dispute the meaning of a term, claim construction is necessary to determine the term's meaning. Trading Techs. Int'l, Inc. v. eSpeed, Inc., 595 F.3d 1340, 1351 (Fed. Cir. 2010) ("In sum, claim construction involves many technical, scientific, and timing issues that require full examination of the evidence and factual resolution of any disputes before setting the meaning of the disputed terms.").
The parties dispute the definition of the term "initiating a message." As explained within, neither a straightforward reading of the claims nor a review of the record now before the court conclusively establishes the meaning of the phrase "initiating a message," specifically, whether a message is initiated by the "message originator" or from the "message originator" but by software on devices issued by defendants. Accordingly, claim construction is necessary, and summary judgment is improper.
B. Whether a Single Actor Can Infringe the Patents-in-Suit
Defendants maintain that, under any reasonable construction, the claims at issue cannot be performed by a single actor. As explained within, a patent is infringed only when each step in a claimed method is performed by a single actor. In this case, defendants contend that the transmission of a message in the method described by the claims requires the conduct of, at minimum, the "message originator" and the "message center." Because the claims have not been performed by a single actor, defendants reason, they are entitled to summary judgment of non-infringement. The court analyzes the single-actor requirement, then applies that analysis to Intellect's claims in this case.
1. The Single-Actor Requirement
As the Court of Appeals for the Federal Circuit has reaffirmed repeatedly, "Direct infringement requires a party to perform or use each and every step of a claimed method or product." BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373, 1378 (Fed. Cir. 2007) (citing Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 117 S.ct 1040 (1997)); Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318, 1329 (Fed. Cir. 2008). This requirement is based on the statute defining infringement, which states that "whoever without authority makes, uses, offers to sell, or sells any patented invention within the United States . . . infringes the patent." 35 U.S.C. § 271(a). An infringer must make, use, offer to sell, or sell the entire claimed invention; consequently, "Direct infringement . . . is limited to those who practice each and every element of the claimed invention." BMC Res., 498 F.3d at 1381.
Recent Federal Circuit cases cited by defendants teach that claims generally cannot be infringed by the conduct of multiple parties. In BMC Resources, the court addressed method claims "for processing debit transactions without a personal identification number." 498 F.3d at 1375. The claims at issue required: "accessing a remote payment network;" "the accessed remote payment network determining" whether sufficient funds for the debit transaction existed; and "charging the entered payment amount against the account. . . ." Id. at 1376. The court found that the claim required the conduct of multiple actors including the defendant, which processed the requested debit transaction, and a financial institution, which, if it approved the transaction, charged the entered payment amount. Id. at 1376-77. Analyzing these claims, the court affirmed that no infringement had occurred in part because multiple parties' conduct was necessary to complete the conduct described in the claim. Id. at 1378.
In Muniauction, on which defendants also rely, the Federal Circuit again addressed a case in which "no single party performs every step of the asserted claims." 532 F.3d at 1328. The claims at issue in Muniaction concerned software by which a municipality could issue bonds; bidders for those bonds could enter bids, which the issuing municipality could view thanks to the defendant's auctioneer software. Id. at 1322-23. The court found that the claims before it required the conduct at least of a bidder and the auctioneer, and the parties agreed that each step of the claims could not be performed by one party. Id. at 1328-29. Without a single actor (or a single actor's control of other actors, as described in note 4 below), no infringement occurred. Id.; see also Cross Med. Prods. v. Medtronic Sofamor Danek (Cross), 424 F.3d 1293, 1310-11 (Fed. Cir. 2005) (analyzing a patent for orthopedic surgical implants that required that the implant be "operatively joined" to the patient's bone; holding that the patent was not infringed by the implant's manufacturer in part because the surgeon "operatively joined" the implant to the bone).
The single-actor requirement is subject to a single, so-called "mastermind" exception by which multiple parties under the "control or direction" of a single party "combine to perform every step of a claimed method." Muniauction, 532 F.3d at 1329. In such cases, the mastermind is liable as if it performed each of the actions directly. Id. In BMC Resources and Muniauction, the Federal Circuit found insufficient indicia of "control or direction" to impute the conduct of the several parties that performed the steps in the claim to one mastermind. BMC Res., 498 F.3d at 1381-82; Muniauction, 532 F.3d at 1330; see also Cross, 424 F.3d at 1310-11.
In this case, defendants contend that the mastermind exception does not apply to the conduct alleged by Intellect. Defendants cite several cases holding that remote users of software are not controlled or directed by central software administrator. See Muniauction, 532 F.3d at 1380-81; see also Global Patent Holdings, LLC v. Panthers BRHC LLC, 586 F. Supp. 2d 1331, 1335 (S.D. Fla. 2008); see also McKesson Info. Solutions LLC v. Epic Sys. Corp., 1:06-CV-2965-JTC, 2009 WL 2915778, at *6 (N.D. Ga. Sept. 8, 2009); but see Netscape Comms. Corp. v. ValueClick, Inc., 684 F. Supp. 2d 699, 727 (E.D. Va. 2010) (denying summary judgment due to factual questions regarding whether defendant software company directed or controlled software on users' computers); Am. Patent Dev't Corp., LLC v. Movielink, LLC, 637 F. Supp. 2d 224, 236-37 (D. Del. 2009) (same); see also Nuance Comms. Inc. v. Tellme Networks Inc., Civ. No. 06-105-SLR, 2010 WL 1609883, at *9 (D. Del. Apr. 20, 2010) (finding that questions of fact existed concerning whether end users of telephone speech-recognition directory assistance services exercised "control or direction" over defendant's services). In response, Intellect raises no argument regarding the "control or direction" exception to the single-actor requirement, and points to no evidence suggesting that defendants exercised such "control or direction" over their customers.
2. Limitations on the Single-Actor Requirement
Intellect argues that defendants violate each and every step in the claims at issue, thereby not running afoul of the single-actor requirement. As noted above, the parties' central dispute concerns the term "initiating a message from a message originator. . . ." According to Intellect, defendants' software, not defendants' subscribers, "initiat[es] a message." The software within each device is defendants' own, Intellect contends, such that defendants perform each step of the claimed method without reference to another party.
Although Intellect cites no authority in support of this argument, recent cases have distinguished BMC Resources and Muniauction in addressing claims that, while "contemplat[ing]" the conduct of several parties, explicitly address the conduct only of a single actor. Level 3 Comms., LLC v. Limelight Networks, 630 F. Supp. 2d 654, 661 (E.D. Va. 2008); SiRF Tech., Inc. v. Int'l Trade Comm'n, 601 F.3d 1319, 1330 (Fed. Cir. 2010). Whether a claim requires "different parties to perform different acts within one claim," BMC Res., 498 F.3d at 1381, or instead is "drawn to actions which can be
SiRF Technology was decided on April 12, 2010, after the instant motion was fully briefed. SiRF Tech., 601 F.3d 1319. While no party submitted the case as additional authority to be considered by the court, its application to this case is clear for the reasons described in the body of the opinion. SiRF Technology provides a basis for the court's explanation of its decision on the instant motion, but, in the court's view, did not announce a new rule of law that required additional briefing from the parties. Rather, SiRF Technology distinguished Muniauction and BMC Resources on the ground that, while the claims at issue in those two previous cases plainly required the conduct of multiple parties, the method claims before the court in SiRF Technology addressed the conduct of only one actor. Id. at 1329 n. 9. This distinction is consistent with the Federal Circuit's observation in BMC Resources that "[a] patentee can usually structure a claim to capture infringement by a single party." BMC Res., 498 F. 3d at 1381.
performed and are performed by a single party," SiRF Tech., 601 F.3d at 1329, depends on how the claim is structured. "A patentee can usually structure a claim to capture infringement by a single party." BMC Res., 498 F. 3d at 1381.
In SiRF Technology, the Federal Circuit addressed claims concerning methods of "communicating" and "transmitting" data related to a global positioning system ("GPS") to a mobile GPS receiver. 601 F.3d at 1329-30. The court noted that the communicating and transmitting of such data could occur only if its customer forwarded the data to an end user and the end user downloaded the data. Id. at 1330. However, the claims at issue did not concern the "forwarding" and "downloading" performed by the customer and end user, respectively, but rather only "communicating" and "transmitting," both of which the infringer could and did perform. Id. Accordingly, the customer's and the end user's conduct, while related to the claim, was not described in the claim, and therefore did not violate the single-actor requirement. Id.
The SiRF Technology court also examined a second claim requiring "processing [the] satellite signals at the mobile GPS receiver." Id. The infringer argued that the end user needed to, inter alia, "activat[e]" the software at issue and "enabl[e]" a feature on the device before the satellite signals could be "process[ed]," id. at 1331, such that the infringer did not perform every step in the claim. The court rejected this argument, explaining, "There exists no method step in any of the disputed claims that requires `enabling' or `activating' the devices that perform these claim limitations. . . . Appellants, in essence, ask us to read such limitations into the claims. We decline to do so." Id.
Similarly, in Level 3 Communications, a district court addressed method claims concerning a content delivery network, which supported the "delivery of information, such as video, music, games, and software, to computer users or computers on behalf of [the network's] subscribers." 630 F. Supp. 2d at 656. The claims at issue referenced, by way of a preamble, "clients" and "subscribers," but clients and subscribers "play[ed] no role in the steps of the claims' methods." Id. at 659, 660. Rather, the claims at issue were "drafted in such a way as to allow infringement to be claimed on the basis of a single party. . . ." Id. at 661. Because the claims before it were structured to capture the conduct of a single party, the Level 3 Communications court, like the SiRF Technology court, found "jurisprudence regarding infringement by multiple parties in Muniauction and BMC inapposite," id. at 661, and accordingly denied summary judgment.
3. Intellect's Claims
a. The Claims as Written
In this case, the claim quoted above requires, inter alia, "initiating a message from a message originator to a message recipient under the control of the message originator as to when the message is sent to a message center. . . ." (Defs.' Stmt. ¶ 15.) Intellect argues that, while the claim requires "initiating a message," the claim does not require that the "message originator" perform the "initiating." Rather, according to Intellect, a defendant that maintains the "message center" and the software on each subscriber's wireless device to "initiat[e]" a message can perform each of the steps in the method claim as a single actor.
The court agrees. Based on the available evidence, the claim does not clearly require the conduct of the message originator. If, for example, the claim was limited by a term such as, "initiating, by a message originator, a message," then the conduct of the message originator would be a limitation on the claim. Or, if the claim included not only the same "initiating" language at issue here but also a limitation of "composing, by a message originator, a message," then the patents-in-suit might address the conduct of multiple parties. But the "initiating a message" limitation on the claims at issue in this case requires a message from, and not conduct by, the message originator. The "initiating" conduct does not need to be by the message originator. To read the claim otherwise would be to read conduct into the claims, which, the Federal Circuit has instructed, is improper. SiRF, 601 F.3d at 1331.
In debating the meaning of the phrase "initiating a message," the parties have not discussed the meaning of the term "message originator." However, it is not clear that "message originator" refers to the user of a wireless device such as defendants' subscribers, rather than the software on such a wireless device, as explained within.
Defendants argue against this reading and point to a recent district court decision granting summary judgment on what defendants assert to be "substantively identical" arguments to those offered by Intellect. See PA Advisors, LLC v. Google, Inc., No. 2:07-cv-480, 2010 WL 986618 (E.D. Tex. Mar. 11, 2010). In PA Advisors, the district court addressed the applicability of BMC Resources and Muniauction to a claim pertaining to search engine technology employed by Google and Yahoo. Id. at *8. The claim at issue included a step requiring "providing, by the user to the local computer system, search request data. . . ." Id. The other steps in the claim at issue were "performed by the system [i.e., Google or Yahoo] — not the user." Id. The court found that: the claim "requires the user to provide the system query data;" there was no evidence that the defendants directed or controlled the "user;" and "the user continues to choose the course of the search without the `control or direction' of the accused search engines." Id. Because independent conduct by both the user and the system was necessary to complete each step in the claim at issue, the patent was not infringed.
Contrary to defendants' argument, the claims at issue in PA Advisors differ from those at issue here. As discussed above, the claims at issue here do not require conduct by the message originator, but rather the initiation of a message from the message originator. The claim at issue in PA Advisors required conduct by a "user," specifically, "providing . . . search request data." Id. In other words, the plaintiff in PA Advisors, by arguing that the defendants could perform each and every step in the claim, sought to omit a term from the reading of the claim. Id. In this case, Intellect does not seek to omit "initiating" from the claims at issue, but rather argues that the "initiating" is not performed by the message originator. As explained above, Intellect's interpretation is plausible, rendering PA Advisors distinct from this case.
b. The Claims as Applied to This Case
Defendants contend that regardless of the reading of the claims at issue, the undisputed evidence in this case reveals that the allegedly infringing conduct is performed by multiple actors. In response, Intellect produces evidence to support its theory that each defendant performs every step in the claims at issue. With respect to U.S. Cellular, Intellect points to internal U.S. Cellular documents that provide that software on the wireless devices "sends . . . messages" to the service center. (Pl.'s Ex. C.) With respect to T-Mobile, Intellect produces internal documents suggesting that software on wireless devices sends and receives messages to the service center (Pl.'s Ex. D), "without user intervention" (Pl.'s Ex. B at 40).
In a footnote in their reply brief, defendants maintain that Intellect has conceded in its discovery responses that the message originator initiates a message in the claims at issue. (Doc. 144 at 4 n. 2.) As Intellect points out, though, it supplemented its discovery responses to make clear that it contends that defendants' devices "initiat[e]" messages, so that each defendant performs every step in the method claim. ( See, e.g., Pl.'s Ex. A at 30.)
Courts have long recognized that parties may amend and supplement their answers to interrogatories, see, e.g., McElroy v. United Air Lines, Inc., 21 F.R.D. 100, 102 (W.D. Mo. 1957), and that "an answer to an interrogatory does not conclusively bind the answering party in all instances," Marcoin, Inc. v. Edwin K. Williams Co., 605 F.2d 1325, 1328 (4th Cir. 1979). This general trend is particularly true in patent cases, in which parties frequently propound and respond to interrogatories regarding each other's contentions, like those at issue here. While previously, courts generally disallowed such "contention" interrogatories, see Charles A. Wright et al., Federal Practice and Procedure, § 2167, at 21 (3d ed. 1998), Rule 33(a)(2) now explicitly permits such interrogatories in all cases. Still, courts, particularly in patent suits, generally still do not treat responses to contention interrogatories as binding. See, e.g., R2 Med. Sys., Inc. v. Katecho, Inc., 931 F. Supp. 1397, 1414 (N.D. Ill. 1996) (Gettleman, J.) ("Answers to interrogatories, however, do not bind parties as do allegations or admissions in a pleading."); Third Wave Techs., Inc. v. Stratagene Corp., 405 F. Supp. 2d 991, 1000 (W.D. Wis. 2005). The Local Patent Rules of the Northern District of Illinois further exemplify the non-binding nature of the contentions of parties by providing for the disclosure both of "initial infringement contentions, L.P.R. 2.2, and "final infringement contentions," L.P.R. 3.2. This is not to say that Intellect can forever avoid summary judgment by amending its responses to defendants' interrogatories, but rather that Intellect's initial interrogatory responses are not binding at this stage.
Given the non-binding nature of initial interrogatory responses, Intellect's supplemental responses, the Local Patent Rules' provision for evolving contentions over the span of the suit, the early timing of the instant motion, and a reading of the subject method claims, which suggests that a "message originator" may not "initiat[e]" a message, the court declines to grant defendants' motion on the basis of Intellect's prior interrogatory response.
The evidence creates a genuine issue of material fact regarding whether each defendant's software "initiat[es] a message from the message originator." The court also is unconvinced that "message originator" and "message recipient" as applied to wireless devices sold by T-Mobile and U.S. Cellular to their subscribers refer to users of devices, rather than to software contained on the devices themselves; therefore, even if the claims required conduct by a "message originator" (for example, because the sending of the message is "under the control" of the message originator), they would not necessarily violate the single-actor requirement. Documents provided with respect to both defendants describe the sending and receiving of messages as if no subscriber was necessary.
Despite these factual issues, defendants contend that they are nevertheless entitled to summary judgment for two reasons. First, defendants contend that, for a claim-infringing message to be sent, a subscriber must first perform the predicate acts of composing a message and requesting to send that message. For this proposition, defendants rely on Global Patent Holdings, 586 F. Supp. 2d 1331, also cited above. Global Patent Holdings addressed a patent that the parties agreed "require[d] two individuals or entities to complete all of the method's steps . . . — a remote computer user, and the website server." Id. at 1335. In this case, unlike in Global Patent Holdings, a genuine dispute concerns whether the conduct of multiple parties, or only that of a single party, is necessary to complete the subject method claims' steps; a reading of the claims and a review of the present record does not resolve that dispute.
This case is more analogous to SiRF Technology, the recent Federal Circuit case discussed above. In SiRF Technology, as discussed above, the court rejected the infringers' efforts to read additional terms into the claim, even if those terms were necessary predicates to the conduct described in the claim. 601 F.3d at 1330-31. The court offered the following analogy:
[I]f a claim for a method of making a telephone call included the limitation: "placing a telephone call to a telephone at a second location," the fact that the call must first be routed through a switched telephone network, and then eventually to the eventual recipient, would not prevent this claim limitation from being satisfied.
Id. at 1330. That analogy is similarly apt here. A claim that requires "initiating" a message may require a predicate act by a subscriber. But, unless that predicate act is described in the claim, the claim does not necessarily require the conduct of multiple actors. Here, a factual question exists as to whether the defendants alone perform the steps in the claims at issue, or whether conduct by the subscribers is also necessary.
Finally, defendants urge that because their subscribers possess and own the wireless devices in question, the subscribers and defendants must both act to satisfy the claim limitations. In other words, the subscribers' ownership of the devices renders the operation of the software attributable to the subscribers, rather than defendants. However, defendants cite no relevant legal authority for this proposition. Moreover, the SiRF Technology court, while not explicitly addressing this question, found the patents before it infringed where chips "designed and built by" the infringers were "incorporated into end-user GPS devices." Id. at 1323, 1331. As the court found, "Once the GPS receiver is enabled and ready to process the data, only [the infringers'] actions are involved in" satisfying the claims limitations. By implication, the infringers' conduct included actions taken by the software in the GPS devices.
The court rejects defendants' contention that because their subscribers own the wireless devices at issue, the conduct of multiple parties is required. The performance of certain steps of the method claims by software on wireless devices that defendants provide to their subscribers does not prevent the claims from being satisfied by the defendants' conduct.
IV. CONCLUSION
In sum, the claims at issue in this case present a number of material factual issues that the court cannot resolve at this stage. Claim construction is therefore appropriate, and defendants' motion for summary judgment is denied.
tration, tuition, regular instruction fees and required textbooks," if the employees qualified for reimbursement. To qualify for reimbursement, the courses taken must have been "designed to maintain or improve the employee's job skills and increase work related competencies or capabilities," and must have
been taken at an "accredited university, college or vocational institution for a grade." Most importantly, the policy mandated that "management *** approve the employee's application for a specific course of study and the educational institution
before each enrollment." (Emphasis added.)
Koziol also stated that contrary to Owens' allegations, Wright and Wantroba were not reimbursed tuition for classes they had taken. In fact, Koziol stated that Exxon Mobil has not reimbursed anyone for tuition expenses at the plant in the past three years. Wright and Wantroba corroborated Koziol's statements. While Wright indicated that he had never requested or received tuition reimbursement from Exxon Mobil, Wantroba stated that although he had requested reimbursement on one occasion, that reimbursement was not granted because the class Wantroba took did not qualify for tuition reimbursement.
Based on the aforementioned investigation, the Department of Human Rights found that there was insufficient evidence to permit Owens to proceed with counts F, G, and H of his discrimination charge. Accordingly, the Department recommended that Owens' charge be dismissed in its entirety.
C. The Chief Legal Counsel's Reversal of the Department's Dismissal
On January 22, 2008, the chief legal counsel of the Department of Human Rights entered an order vacating the Department's dismissal of the charge and remanding the matter to the Department for further investigation. With respect to counts A, B, C, D, and E of the charge, the chief legal counsel directed the Department to determine the following: (1) Exxon Mobil's written discipline policy; (2) the difference between a "written counseling" and a "written warning" and/or "written reprimand"; and (3) specifically, what Exxon Mobil's discipline policy states are the consequences of loading errors.
With respect to counts F, G, and H, the chief legal counsel directed the Department to determine: (1) the date Owens submitted his application for tuition reimbursement; (2) Exxon Mobil's criteria in determining whether courses can be reimbursed; (3) the exact dates Owens' courses started and whether the list of those courses was submitted to Exxon Mobil prior to the tuition reimbursement application process; and (4) the exact date when Owens' request for tuition reimbursement was denied.
D. The Department's Second Investigation and Dismissal
On July 10, 2008, the Department completed an addendum investigation report, based upon which it again dismissed all counts of Owens' discrimination charge. In conducting its second investigation, the Department investigator reinterviewed Owens and Koziol, as well as reviewed several additional documents provided by the parties, including, inter alia: (1) an excerpt from Exxon Mobil's plant rules; (2) a letter from Exxon Mobil to the Department of Human Rights; (3) a group of loading error investigation reports for Owens; and (4) Owens' tuition refund application together with a group of verification for tuition payment forms.
With respect to counts A through E, the Department's addendum investigation report disclosed the following evidence pertinent to the Department's dismissal of those counts. When reinterviewed regarding Exxon Mobil's disciplinary policy, shift supervisor Koziol stated that both the terms of Owens' employment and any disciplinary actions to be taken against him are governed by the terms of the collective bargaining agreement, as well as the Cicero plant's disciplinary rules.
In a letter to the Department dated February 13, 2008, Exxon Mobil explained the contents of the collective bargaining agreement as well as the Cicero plant's disciplinary rules. According to the bargaining agreement, with respect to discipline, if an "employee alleges his/her discharge was unjust," he or she has 10 working days to file a grievance regarding the discharge. After the employee files a grievance, the company must inform the union within three working days of the reason for a disciplinary suspension or a discharge, and if the union feels there was no just cause for the company's action, the case may be processed under the grievance and arbitration procedure. In addition, according to the collective bargaining agreement, the company and the union agree to "abide by all valid and applicable non-discrimination laws." Finally, under the agreement "[t]he company retains all rights of management resulting from the ownership of the plant or pertaining to the operation of the business, except to the extent that such rights are limited by the provisions of this Agreement." According to Exxon Mobil, under the collective bargaining agreement, with respect to discipline, the agreement provides only that if the employee believes a suspension or discharge is without `just cause," that employee can file a grievance, and if the grievance is non-resolved, the union can request arbitration. The agreement places no other limitations on management's right to operate the business, which includes the right to set standards for work performance and work place behavior and to administer discipline where employees fail to meet standards of performance and behavior.
In this vein, according to Exxon Mobil, the Cicero Regional Distribution Center management has issued plant disciplinary rules. Those plant rules first state that because "personal discipline and proper standards of conduct are necessary to protect the health and safety of all employees," any employee "who fails to maintain at all times proper standards of conduct or who violates any of the plant rules shall subject [himself or herself] to appropriate disciplinary action up to and including termination of employment." Although the plant rules specify certain standards of conduct, such as procedures for reporting injuries or excusing absences, and the ban on "horseplay," sexual harassment, and the use of cell phones inside the plant, they do not include or elaborate on the disciplinary procedure or consequences resulting from loading errors. The plant rules do, however, end with the following statement:
"These rules are not intended to be all inclusive, the Company may establish additional rules, and supervisors may set up rules deemed necessary by operational requirements. Any employee who fails to maintain, at all times, proper standards of conduct, or who violates any of the [above] rules, may be subjected to disciplinary action, which may include termination."
In its letter to the Department, Exxon Mobil also responded to the chief legal counsel's request that Exxon Mobil explain the difference between a "written counseling" and a "written warning." According to Exxon Mobil, "the difference between `counseling' and `warning' is a universally understood concept in labor relations," under which the "objective of `counseling' is to change an employee's behavior," while the "objective of `warning' is discipline."
According to Exxon Mobil, "counseling" or "coaching" an employee on his performance is not a disciplinary action. A "counseling" may or may not be reported in the employee's personnel file. Often it consists merely of informal discussions between supervisor and employee wherein "the employee is advised that certain behavior does not meet the employer's standards and that specified remedial actions are needed." Since most employees respond favorably to informal "counseling" and are fully capable of avoiding or correcting their errors, "verbal counseling" is generally not considered discipline. However, should "verbal counseling" prove ineffective, a formal counseling (i.e., "written counseling") session may follow. When a written memo detailing a "counseling" session is placed in an employee's personnel file, it is intended to provide the employee with "fair notice of the employer's specific requirements," as well as to lend "formality to the session, thereby increasing its significance to the employee."
On the other hand, according to Exxon Mobil, a "letter of reprimand" or a "written warning," is a "disciplinary document that informs the employee that he has failed to make the necessary improvements in performance or behavior and that if he continues to perform unsatisfactorily he may be subject to more severe discipline, up to and including discharge."
According to Exxon Mobil's letter to the Department, on December 13, 2004, Owens was given a "written reprimand" because he had accumulated three prior loading errors for poor performance. In support of this contention, Exxon Mobil provided the Department with a copy of several documents related to these three loading error investigation reports, dated November 1, 2004, October 12, 2004, and December 7, 2004. Those documents revealed that Owens first received "verbal counseling" for a loading error on June 25, 2004, as a result of his failure to add a pallet onto his loading truck and as a result of his inability to fill the order in the requisite amount of time. Owens next received "verbal counseling" in October, after his failure to fill a customer order dated October 7, 2004. That order requested five cases of "Mobil Grease CMS," but the customer received none. The reports further revealed that Owens received another "verbal coaching session" in November as a result of his failure to properly load a customer order dated October 29, 2004. Although in that order the customer requested 1,092 cases of "Mobil 1 5W30," it received only 936 of those cases.
We note that the record is somewhat unclear as to what type of document Owens was issued on December 13, 2004. While Owens alleged that he was given a "written reprimand," both shift supervisor Koziol and operations manager O'Reilly initially told the Department's investigator that Owens was merely issued a "written counseling." The record also reveals that in its initial response to the Department's investigator Exxon Mobil explained that while Owens was given a "written reprimand" on December 13, 2004, that reprimand was later reduced to a "written counseling" after Owens filed a grievance with Exxon Mobil and prior to his filing of the instant discrimination charge with the Department of Human Rights. However, during the Department's second investigation, in a letter to the Department, Exxon Mobil apparently conceded that Owens was given a "written reprimand" on December 13, 2004. In that vein, during this second investigation, shift supervisor Koziol changed his prior statement to the Department's investigator now admitting that Owens was in fact given a "written reprimand," and not a "written counseling.'1 Since the Department's investigator, the chief legal counsel and both parties on appeal seem to agree that on December 13, 2004, Owens was given a "written reprimand," we have no reason to deviate from this conclusion and therefore treat the "written reprimand" as such.
As a result of these three prior loading errors, which were followed by "verbal counseling" sessions, Owens was given a "written reprimand" on December 13, 2004, after a customer complained regarding an order he loaded on August 5, 2004. While that customer order requested 26 cases of "Mobil 1" products, 11 pails of "Mobilux EP2," 5 pails of "Mobil ShC 632," and 4 pails of Vacuoline, the customer received 25 cases of "Mobil 1" products, 12 pails of "Mobilux EP2," 4 pails of "Mobil ShC 632," 3 pails of Vacuoline, and 1 pail of "something without a label."
Based upon the aforementioned additional evidence, as well as the information gathered during its initial investigation, the Department found that Owens had not presented substantial evidence so as to support the allegations in counts A through E of his charge.
With respect to counts F, G, and H, wherein Owens alleged he had been denied equal terms and conditions of employment when Exxon Mobil refused to grant him tuition reimbursement on the basis of his race and age and in retaliation for his filing of the instant charge, the Department's addendum investigation report revealed the following additional evidence. Upon being reinterviewed, Owens stated that in 2005 he submitted his paperwork requesting to be reimbursed for air conditioning, heating and ventilation classes that he completed in 2002, 2003, and 2004. Owens stated that he did not request tuition reimbursement on those classes earlier because prior to taking them he was told that he would not be reimbursed, since those classes were not related to his job duties as a forklift driver. Owens explained, however, that he took the classes anyway, paying for them out of pocket because, in the future, he planned to bid on a maintenance position at the plant. That position involved work with boilers.
A group of verification for tuition payment forms along with an educational refund application for approval form for Owens indicates that Owens took classes during the years 2002 through 2004, which totaled $3,352.
Upon being reinterviewed, shift supervisor Koziol stated that Exxon Mobil does not keep a record of denied requests for tuition reimbursement and does not have a record of the specific date on which Owens requested reimbursement. Koziol reiterated that the reason for the denial of Owens tuition reimbursement request was nondiscriminatory. According to Koziol, Owens was denied reimbursement because the courses were not preapproved and because they did not meet the criteria of the program, i.e., they were unrelated to Owens' job duties.
Based upon the foregoing, the Department dismissed counts F, G, and H of Owens' charge. Owens subsequently filed a request for review by the chief legal counsel of the Department.
E. The Chief Legal Counsel Affirms the Dismissal
On March 9, 2009, the chief legal counsel entered an order sustaining the dismissal of all eight counts of Owens' charge for lack of substantial evidence supporting claims of discrimination. With respect to counts A and B, wherein Owens alleged that on December 13, 2004, he received a written reprimand on the basis of his race and age, the chief legal counsel first found that such a "written reprimand" did not constitute an adverse employment action, since Owens did and could not allege that this reprimand somehow "detrimentally affected" his employment, such as through "loss of pay, loss of benefits, suspension, discharge etc." Citing to Mattern v. Eastern Kodak Co., 104 F.3d 702 (5th Cir. 1997), the chief legal counsel therefore found that a claim of discrimination based upon the December 13, 2004, written reprimand was not actionable under the Illinois Human Rights Act.
The chief legal counsel next found that even if this written reprimand could somehow constitute an adverse employment action, the investigation failed to reveal substantial evidence of a nexus between the written reprimand and Owens' age/and or race. Rather, according to the chief legal counsel, the Department's investigation established that Owens had a history of performance problems related to loading errors prior to December 13, 2004, and that he was issued the written reprimand as a result of this history of poor performance. In addition, the chief legal counsel noted that contrary to Owens' allegations the Department's investigation disclosed that Exxon Mobil issued discipline to other employees for their poor performance. Among those employees disciplined, the chief legal counsel noted: Hanson (white, 44), who received coaching for loading errors; Panozzo (white, 26), v/ho was coached and then suspended for loading errors; Wright (white, 23), who was given a written error report in his personnel file for loading errors; Johnson (white, 49), who was given a written warning and then suspended for product mix errors; and Pratscher (white, 47 \ who was coached for not following loading procedures.
The chief legal counsel similarly found with respect to counts C, D, and E, that Owens had failed to provide substantial evidence that he was issued the second written reprimand on February 15, 2005, because of his race or age or in retaliation for filing the instant charge. Rather, the Department's investigation revealed that on or about January 7, 2005, Owens loaded an order, the customer reported that it did not receive the complete order and Exxon Mobil issued Owens the written reprimand for this error. Referring to its rationale with respect to counts A and B, the chief legal counsel reiterated that the Department's investigation disclosed that Exxon Mobil similarly disciplined several warehouse operators not in Owens' protected age and/or race classes.
Finally, with respect to counts F, G, and H, the chief legal counsel found that the investigation did not reveal substantial evidence that Exxon Mobil subjected Owens to unequal terms and conditions of employment because of his age, race or in retaliation for filing the subject charge when it refused to refund his tuition. Specifically, the chief counsel noted that the tuition policy clearly states that management must approve the tuition reimbursement prior to each enrollment in a class.
Owens now appeals, contending that the chief legal counsel's decision to sustain the dismissal of his charge constituted an abuse of discretion.
II. ANALYSIS
We begin by noting the well-established principles regarding discrimination charges brought under the Illinois Human Rights Act (Act) ( 775 ILCS 5/1-101 et seq. (West 2004)). This Act prohibits "unlawful discrimination," i.e., discrimination against a person on the basis of, inter alia, his or her race, color, religion, national origin, ancestry, age, sex, marital status, or handicap. 775 ILCS 5/1-102 (West 2004). The Act specifically defines the following conduct as a civil rights violation in the employment context:
"For any employer to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination ***." 775 ILCS 5/2-102(A) (West 2004).
The Act also defines retaliation as a civil rights violation, noting:
"It is a civil rights violation for a person, or for two or more persons to conspire, to:
*** Retaliate against a person because he or she has opposed that which he or she reasonably and in good faith believes to be unlawful discrimination, sexual harassment in employment or sexual harassment in higher education, discrimination based on citizenship status in employment, or because he or she has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this Act[.]" 775 ILCS 5/6-101(A) (West 2004).
When an employee files a discrimination charge against the employer pursuant to the Illinois Human Rights Act with the Department of Human Rights, the Department must conduct a full investigation of the allegations set forth in the charge and provide a written report of such an investigation. 775 ILCS 5/7A-102(C)(1), (D)(1) (West 2004). After reviewing the investigation report, the Department must determine whether there is substantial evidence that the alleged civil rights violation has been committed. 775 ILCS 5/7A-102(D)(2) (West 2004). Under the Act, substantial evidence is defined as evidence "which a reasonable mind accepts as sufficient to support a particular conclusion and which consists of more than a mere scintilla but may be somewhat less than a preponderance." 775 ILCS 5/7A-102(D)(2) (West 2004). If the Department of Human Rights determines that there is no substantial evidence, the charge is dismissed. 775 ILCS 5/7A-102(D)(2)(a) (West 2004). If the charge is dismissed by the Department of Human Rights, petitioner may seek review by filing a request for review with the chief legal counsel of the Department. 775 ILCS 5/7A-102(D)(2)(a; (West 2004).
The chief legal counsel's order reviewing the dismissal is a final and appealable order ( 775 ILCS 5/7A-102(D)(2)(a) (West 2004)), and petitioner may seek review of the chief legal counsel's order in the appellate court ( 775 ILCS 5/8-111(A)(1) (West 2004)). The standard of review on appeal is whether the Department's chief legal counsel abused his discretion. Anderson v. Chief Legal Counsel, 334 Ill. App. 3d 630, 634 (2002); see also Welch v. Hoeh, 314 Ill. App. 3d 1027, 1034 (2000) ("we may not reweigh the evidence or substitute our judgment for that of the Department. [Citation.] Our review is limited to deciding whether the chief legal counsel's *** decision dismissing the claim *** is `arbitrary and capricious or an abuse of discretion.' [Citation.]"). A decision is arbitrary and capricious only if it "contravenes the legislature's intent, fails to consider a crucial aspect of the problem, or offers an impossible explanation contrary to agency expertise." Allen v. Lieberman, 359 Ill. App. 3d 1170, 1177 (2005); see also Been v. Lustig, 337 Ill. App. 3d 294, 302 (2003), quoting LaSalle National Bank v. City Suites, Inc., 325 Ill. App. 3d 780, 786 (2001), and citing Bodine Electric of Champaign v. City of Champaign, 305 Ill. App. 3d 431, 435 (1999) ("[a]n abuse of discretion is found when a decision is reached without employing conscientious judgment or when the decision is clearly against logic").
Turning to the merits of the cause at bar, we initially note that on appeal Owens does not challenge the dismissal of counts E through H of his discrimination charge. Owens only argues that the chief legal counsel abused his discretion in finding that there was no substantial evidence to support his cledms of age and race discrimination based on the December 13, 2004, and February 15, 2005, written reprimands (counts A, B, C, and D).
Since Owens does not argue that the chief legal counsel erred in finding that there was a lack of substantial evidence to support the claim that he was issued the February 15, 2005, reprimand in retaliation for filing the subject charge (count E) or the claim that Exxon Mobil subsequently refused to grant his tuition reimbursement request because of his race or age or in retaliation for filing the subject charge (counts F, G, and H), he has forfeited his right to challenge the dismissal of counts E through H. See 210 Ill. 2d R. 341(h)(7) ("Points not argued [in the opening appellant's brief] are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing"); see also In re K.T., 361 Ill. App. 3d 187, 206 (2005) (holding that arguments not raised in appellant's brief are forfeited); see also City of Granite City v. House of Prayers, Inc., 333 Ill. App. 3d 452, 462 (2002) (holding that "[a] court of review is entitled to have the issues clearly defined with pertinent authority cited" and "is not simply a depository in which an appealing party may dump the burden of argument and research"). Therefore, by reason of such forfeiture, any contention that by the denial of tuition reimbursement Exxon Mobil somehow subjected Owens to unequal terms and conditions of employment can play no further part in this appeal.
Accordingly, we turn to the Department's dismissal of counts A through D of Owens' charge. Owens first contends that the chief legal counsel erred in sustaining the Department's dismissal of counts A and B of his discrimination charge, wherein he alleged that shift supervisor Koziol issued him a written warning on December 13, 2004, on the basis of his age and race. Owens specifically argues that the chief legal counsel erred when it found that: (1) Exxon Mobil's written reprimand to him issued on December 13, 2004, did not constitute a cognizable adverse employment action and (2) that Owens failed to present substantial evidence that other similarly situated younger and white workers were treated differently. For the reasons that follow, we disagree.
We first note that in Zaderaka v. Illinois Human Rights Comm'n, 131 Ill. 2d 172, 178-79 (1989), our supreme court recognized that in evaluating charges of discriminatory practices brought under the Illinois Human Rights Act (now see 775 ILCS 5/2-102(A) (West 2004)), the Department of Human Rights and the Illinois appellate courts have adopted the three-part test employed by the federal courts in actions for employment discrimination brought under title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000 et seq. (1982)) and the Age Discrimination in Employment Act of 1967 (ADEA) ( 29 U.S.C. § 621 et seq. (1982)), as articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 677, 93 S. Ct. 1817, 1824 (1973).
Under this three-prong test, the petitioner must first establish by a preponderance of the evidence a prima facie case of unlawful discrimination. Zaderaka, 131 Ill. 2d at 179-80. If a prima facie case is established, a rebuttable presumption arises that the employer unlawfully discriminated against the plaintiff. Zaderaka, 131 Ill. 2d at 178-79. Second, to rebut the presumption, the employer must articulate, not prove, a legitimate, nondiscriminatory reason for its decision. Zaderaka, 131 Ill. 2d at 179. Third, if the employer articulates such a reason, the plaintiff must prove, again by a preponderance of the evidence, that the employer's reason was untrue and was a pretext for discrimination. Zaderaka, 131 Ill. 2d at 179. Under this test, the ultimate burden of persuasion remains on the plaintiff throughout the proceedings. Zaderaka, 131 Ill. 2d at 179.
To establish a prima facie case of employment discrimination, the petitioner must first show that (1) he is a member of a protected class; (2) he was meeting his employer's legitimate business expectations; (3) he suffered an adverse employment action; and (4) the employer treated similarly situated employees outside the class more favorably. Owens v. Department of Human Rights, 356 Ill. App. 3d 46, 52 (2005).
To show that he suffered an adverse employment action, an employee must establish that the employment action was "materially adverse" and not a "`"mere inconvenience or an alteration of job responsibilities." `" Hoffelt v. Department of Human Rights, 367 Ill. App. 3d 628, 633 (2006), quoting Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002), quoting Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir. 1996). A materially adverse employment action is "one that significantly alters the terms and conditions of the employee's job." Griffin v. Potter, 356 F.3d 824, 829 (7th Cir. 2004); see also Rhodes v. Illinois Department of Transportation, 359 F.3d 498, 504 (7th Cir. 2004) ("an adverse employment action is a significant change in the claimant's employment status"); Johnson v. Cambridge Industries, Inc., 325 F.3d 829, 901, 902 (7th Cir. 2003) (noting that to establish an adverse employment action an employee "must show some quantitative or qualitative change in the terms or conditions of his employment" or some sort of "real harm";. Adverse employment actions include things such as hiring, denial of promotion, reassignment to a position with significantly different job responsibilities, or an action that causes a substantial change in benefits. See Rhodes, 359 F3d at 504; see also Hoffelt, 367 Ill. App. 3d at 633, quoting Traylor, 295 F.3d at 788 ("`"[a] materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." [Citation.]'"). However, "not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that `an *** employee did not like would form the basis of a discrimination suit.'" Smart v. Ball State University, 89 E3d 437, 441 (7th Cir. 1996), quoting Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1993).
Accordingly, it has repeatedly been held that oral and written reprimands alone do not alter an employee's terms or conditions of employment to such an extent so as to constitute an adverse employment action for purposes of establishing a prima facie case of employment discrimination. See, e.g., Lloyd v. Swifty Transportation, Inc., 552 E3d 594, 602 (7th Cir. 2009) ("written reprimands without any changes in the terms and conditions of *** employment are not adverse employment actions"); see also Atanus v. Perry, 520 F.3d 662, 675 (7th Cir. 2008) (holding that "letter or instruction" which admonished the employee that she was not following guidelines did not rise to the level of adverse employment action where the employee did not show any job consequences such as termination, demotion, or change in responsibilities); see also Oest v. Illinois Department of Corrections, 240 E3d 605, 613 (7th Cir. 2001) (holding that oral and written reprimands received under progressive discipline system did not constitute adverse employment action where they did not implicate any tangible job consequences); Grube v. Lau Industries, Inc., 257 F.3d 723, 729 (7th Cir. 2001) ("unfair reprimands or negative performance evaluations, unaccompanied by some tangible job consequence, do not constitute adverse employment actions"); Krause v. City of La Crosse, 246 F.3d 995, 1000 (7th Cir. 2001) (same); Sweeney v. West, 149 F.3d 550, 556-57 (7th Cir. 1998) (holding that "two counseling statements" which admonished the employee to improve did not constitute adverse employment action since employee failed to point to any immediate consequences of the reprimands, such as change in an eligibility for promotion, denial of advantageous increase in responsibilities or similar benefits); cf. Coolidge v. Consolidated City of Indianapolis, 505 F3d 731, 735 (7th Cir. 2007) (explaining that two reprimands followed by termination constituted an employment action).
In the present case, Owens nowhere alleged and the Department's investigation nowhere revealed any evidence suggesting that the December 13, 2004, "written reprimand" had any significant effect on the terms or conditions of his employment, so as to constitute an adverse employment action. In its letter to the Department, Exxon Mobil explained that a written reprimand is a disciplinary document that merely tells an employee that he has failed to make the necessary improvements in performance or behavior and that if he continues to perform unsatisfactorily he may be subject to more severe discipline, up to and including discharge. Consistent with this assertion, the December 13, 2004, written reprimand served only to warn Owens about his unsatisfactory work performance. In this respect, in his own discrimination charge, Owens asserted only that he was issued the reprimand for "working too slowly and for making excessive errors." Shift supervisor Koziol similarly stated that he issued the written reprimand to Owens because of his poor performance. Accordingly, there was no evidence that the written reprimand had any significant effect on the terms and conditions of Owens' job, such as the amount of his pay, his benefits or his work responsibilities. Therefore, Owens failed in his burden to establish that the written reprimand constituted an adverse employment action. See, e.g., Lloyd, 552 F.3d at 602 (holding that a loading driver who received two written reprimands for loading gas from the wrong supplier failed to establish a prima facie case of employment discrimination since "written reprimands without any changes in the terms and conditions of his employment are not adverse employment actions"); see also Atanus, 520 F.3d at 675 (holding that employee had failed to establish that a "letter or instruction" which admonished her that she was not following company guidelines constituted an adverse employment action where the employee did not show that the letter was followed by any significant consequences to her employment, such as termination, demotion, or change in responsibilities); see also Sweeney, 149 F.3d at 556-57 (holding that employee failed to establish that "two counseling statements" which admonished him to improve constituted an adverse employment action since employee failed to point to any immediate consequences of the reprimands, such as change in an eligibility for promotion, denial of advantageous increase in responsibilities or similar benefits).
Owens nevertheless argues on appeal that in finding that the written reprimand did not constitute an adverse employment action, the chief legal counsel erroneously relied on Mattern v. Eastern Kodak Co., 104 F.3d 702 (5th Cir. 1997). Owens argues that while in Mattern, the Fifth Circuit held that only "ultimate employment decisions" are actionable adverse acts, the United States Supreme Court invalidated that ruling in Burlington Northern Santa Fe Ry. Co. v. White, 548 U.S. 53, 165 L. Ed. 2d 345, 126 S. Ct. 2405 (2006). Owens, however, misunderstands both the chief legal counsel's decision as well as the decision in Burlington Northern.
First, contrary to Owens' assertion, the chief legal counsel did not cite Mattern for the proposition that only "ultimate employment decisions" are to be considered actionable adverse acts for purposes of discrimination claims. Rather, the chief legal counsel relied on Mattern for the principle that to constitute an adverse employment action, the employer's action must have somehow "detrimentally affected" the employee. The chief legal counsel then found that the Department's investigation disclosed no evidence that the December 13, 2004, written reprimand somehow detrimentally affected Owens, such as by way of "loss of pay, loss of benefits, suspension, discharge, etc." Based on the aforementioned, the chief legal counsel found that Owens had failed to present a prima facie case of an actionable adverse employment action.
Moreover, Owens' citation to Burlington Northern is entirely misplaced. In that case, the United States Supreme Court held that claims of retaliation are not limited to actions that affect the employee's terms and conditions of employment. Burlington Northern, 548 U.S. at 63-67, 165 L. Ed. 2d at 357-59, 126 S. Ct. at 2412-15. In doing so, however, the Supreme Court expressly distinguished claims of substantive employment discrimination, such as the one here, from claims of retaliation, explaining that substantive discrimination claims are limited to actions that affect the employee's terms and conditions of employment. Burlington Northern, 548 U.S. at 64-67, 165 L. Ed. 2d at 357-59, 126 S. Ct. at 2412-15. As the Court in Burlington Northern explained:
"The antidiscrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-01, [
36 L. Ed. 2d 668, 677,
93 S. Ct. 1817, 1823] (1973). The antiretaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are,
i.e., their status. The antiretaliation provision seeks to prevent harm to individuals based on what they do,
i.e., their conduct.
To secure the first objective, Congress did not need to prohibit anything other than employment-related discrimination. The substantive provision's basic objective of `equality of employment opportunities' and the elimination of practices that tend to bring about `stratified job environments,' [citation] would be achieved were all employment-related discrimination miraculously eliminated.
But one cannot secure the second objective by focusing only upon employer actions and harm that concern employment and the workplace. Were all such actions and harms eliminated, the antiretaliation provision's objective would not be achieved. An employer can effectively retaliate against an employee by taking actions not
directly related to his employment or by causing him harm outside the workplace." (Emphasis omitted.)
Burlington Northern, 548 U.S. at 63,
165 L.Ed. 2d at 356-57,
126 S. Ct. at 2412.
Accordingly, Owens' citation to Burlington Northern in support of his substantive discrimination claim is without merit.
In any event, even if we were to hold that the December 13, 2004, written reprimand was an adverse employment action, a review of the record below reveals that contrary to Owens' contention, the chief legal counsel did not abuse his discretion in finding that this reprimand was not related to Owens' race or age.
In that respect, we note that the record below reveals that Exxon Mobil issued Owens the written reprimand in accordance with Exxon Mobil's disciplinary policies because Owens had accumulated a history of loading errors. The Department's investigation report revealed that Exxon Mobil's plant rules provide that an employee who fails to maintain proper standards of conduct or who violates any of the plant rules will be subject to appropriate discipline up to and including termination. The rules further state that supervisors may establish additional rules deemed necessary by operational requirements.
The Department's investigation further revealed that prior to December 13, 2004, Owens had accumulated a history of performance problems related to loading. The Department's investigation disclosed that Exxon Mobil received and investigated several complaints on orders loaded by Owens beginning in June 2004. Specifically the investigation revealed that Owens first received "verbal counseling" for a loading error on June 25, 2004, as a result of his failure to add a pallet onto his loading truck and as a result of his inability to fill the order in the requisite amount of time. Owens next received a "verbal counseling" session in October 2004, after his failure to fill a customer order dated October 7, 2004. That order requested five cases of "Mobil Grease CMS," but the customer received none. Owens received another verbal coaching session in November 2004 as a result of his failure to properly load a customer order dated October 29, 2004. Although in that order, the customer requested 1,092 cases of "Mobil 1 5W30," it received only 936 of those cases. Following these three loading errors, Owens was issued the written reprimand on December 13, 2004, after an investigation into a customer's complaint regarding an order dated August 5, 2004, revealed that Owens had failed to properly load that order. While that customer order requested 26 cases of "Mobil 1" products, 11 pails of "Mobilux EP2," 5 pails of "Mobil ShC 632," and 4 pails of Vacuoline, the customer received 25 cases of "Mobil 1" products, 12 pails of "Mobilux EP2," 4 pails of "Mobil ShC 632," 3 pails of Vacuoline, and 1 pail of "something without a label." Accordingly, the December 13, 2004, written reprimand was intended to warn Owens that he had failed to make the necessary improvements in his performance and that if he continued to perform unsatisfactorily he could be subject to more severe discipline.
Moreover, the Department's investigation disclosed no evidence at all that similarly situated employees outside Owens' protected class were not similarly disciplined for similar conduct. In fact, Exxon Mobil's disciplinary records for the employees at the Cicero plant revealed that Exxon Mobil issued written reprimands, "counseling," and even suspensions to younger, white employees in the plant for their poor work performance. For example, on August 29, 2003, Panozzo (white, 26 years old) received a letter of reprimand for operating a forklift truck in an unsafe manner on company property. Similarly, on August 29, 2003, Wantroba (white, 36) was suspended for truck spillage, and on August 28, 2003, Novakowksi (white, 47) received "counseling" for failure to wear proper attire at the plant.
More importantly, Exxon Mobil's loading error investigation reports disclosed that other employees were disciplined for their poor performance in loading orders. For example, those reports showed that in 2004 and 2005 both Hanson (white, 44 years old) and Panozzo (white, 26 years old) were "coached" for loading errors. Similarly, in 2004 both Wright (white, 23 years old) and Pratscher (white, 47 years old) were given errors in their personnel files for loading errors. In 2005, Pratscher was subsequently coached for not following loading procedures. In addition, the reports reveals that both Panozzo and Johnson (white, 49 years old) received letters of reprimand in 2003 and 2001, respectively, the first for unsafe use of a forklift and the latter for a product mix error in loading. Both Panozzo and Johnson were also suspended for poor performance (Johnson in 2002 for a product mix error, and Panozzo in 2001 for an error loading the forklift). Accordingly, Owens cannot contend that other, younger and white employees escaped discipline at the plant.
Owens nevertheless argues that he presented sufficient evidence of race and age-based discrimination because the reports from Exxon Mobil reveal that while younger white employees were disciplined, unlike him, they were not given letters of reprimand for loading errors. Owens specifically points out that Pratscher, Hanson and Panozzo only received coaching for their loading errors, and Wright only had an error reported in his file for a loading error. For the reasons that follow, we find this argument without merit.
We first note that when interviewed by the Department's investigator, operations manager O'Reilly explained that an employee would receive a "written counseling" followed by a "written reprimand" or written warning only after he or she accumulated more than three loading errors. In that respect O'Reilly stated that, contrary to Owens' contention, Wright was only given a loading error in his file, instead of a "counseling" or a warning, because prior to that he had made no loading errors. O'Reilly also explained that Pratscher and Panozzo had not been counseled or given written warnings with respect to loading errors since neither had committed three such errors.
More importantly, Owens himself fails to allege that anyone of the aforementioned employees was in fact similarly situated to him. As explained above, the record demonstrates that Owens had a history of loading errors and had received "verbal counseling" and "coaching" for these errors before his December 13, 2004, "written reprimand." However, in arguing that the other employees did not receive "written reprimands," Owens does not show or even allege that they had a similar history concerning loading errors.
Accordingly, under the record below, it is apparent that the chief legal counsel did not abuse his discretion in finding that there was a lack of substantial evidence showing that Exxon Mobil issued Owens the December 13, 2004, reprimand on the basis of his age or his race.
Owens next contends that the chief legal counsel erred in sustaining the Department's dismissal of counts C and D of his discrimination charge because there was substantial evidence that shift supervisor Koziol issued him a second "written reprimand" on February 15, 2005, on the basis of his age and race. We disagree.
We initially note that for those same reasons already articulated above in the context of the December 13, 2004, "written reprimand," Owens has failed to show that the February 15, 2004, "written reprimand" standing alone sufficiently affected the terms and conditions of his employment so as to constitute an adverse employment action. As with the December 13, 2004, reprimand, here again, Owens presented no evidence to show that the second written reprimand had any significant effect on the terms and conditions of his employment, such as his pay, benefits or work responsibility. See, e.g., Lloyd, 552 F.3d at 602; Atanus, 520 F.3d at 675; Sweeney, 149 F.3d at 556-57.
More overridingly, even if the second "written reprimand" constituted an adverse employment action, a review of the record below reveals that the chief legal counsel did not abuse his discretion in finding that there was no evidence that the decision to issue the reprimand was not related to Owens' race or age. In fact, the Department's investigation revealed that Owens was issued the February 15, 2005, reprimand after committing a loading error on January 7, 2005, by failing to load any of the eight drums of "Telura 622" requested by the customer and as a result of having committed numerous loading errors in the past. The customer order dated January 7, 2005, showed that the customer did in fact order eight drums of "Telura 622." Shift supervisor Koziol told the Department investigator that after receiving and investigating the customer's complaint, the warehouse supervisor found that its inventory was over by eight drums and that Owens was the warehouse operator in charge of loading that order. More importantly, Owens himself never denied making the error, but simply stated that he did not know whether he failed to include the drum in the order, explaining that the customer could have changed the order after he loaded it.
In addition, the Department's investigation revealed no evidence that similarly situated employees outside of Owens' protected class were not similarly disciplined for similar conduct. As already articulated above, Exxon Mobil issued "written reprimands," "counseling," and suspensions to numerous other employees for poor work performance. Accordingly, for all of the aforementioned reasons, we find no abuse of discretion in the chief legal counsel's dismissal of counts C and D of Owens' discrimination charge.
On appeal, Owens next contends that the substantial evidence standard as articulated under section 7A-102(D)(2) of the Illinois Human Rights Act ( 775 ILCS 5/7A-102(D)(2) (West 2004)) violates the requirements of due process because it is unconstitutionally vague. Although not clearly explained in his brief, Owens appears to argue that the statute is unconstitutional on its face as well as applied to him because under the Act's definition of "substantial evidence," a petitioner does not know what level of proof is necessary to sustain a charge of discrimination and because it gives the chief legal counsel unbridled discretion. For the reasons that follow, we disagree.
At the outset, we note that Owens has waived his right to raise this issue on appeal by failing to raise it in the administrative proceedings below. In that respect, we note that "[i]n general, issues or defenses not placed before the administrative agency will not be considered for the first time on administrative review." Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 278-79 (1998). Our supreme court has held that this general waiver principle applies to constitutional challenges to a statute not raised before an administrative agency, unless the issue being raised for the first time on appeal is a facial challenge to the statute. See Texaco-Cities Service Pipeline Co., 182 Ill. 2d at 278-79, Carpetland U.S.A., Inc. v. Illinois Department of Employment Security, 201 Ill. 2d 351, 396-97 (2002); cf. Arvia v. Madigan, 209 Ill. 2d 520, 527-28 (2004) ("A principal reason underlying this court's preference that litigants assert a constitutional challenge before the agency — notwithstanding the agency's inability to rule on the matter — is that it allows opposing parties a full opportunity to present evidence to refute the constitutional challenge. Such an evidentiary record is indispensable because administrative review is confined to the record created before the agency. [Citation.] A facial challenge to a statute, however, presents an entirely legal question that does not require fact-finding by the agency or application of the agency's particular expertise").
With respect to a vagueness challenge to a statute, our supreme court has made clear that a petitioner will have standing to challenge the constitutionality of a statute on its face only if the challenged language implicates first amendment rights. See People v. Jihan, 127 Ill. 2d 379, 385-86 (1989); see also People v. Ryan, 117 Ill. 2d 28, 34 (1987), quoting United States v. Mazurie, 419 U.S. 544, 550, 42 L. Ed. 2d 706, 713, 95 S. Ct. 710, 714 (1975). Since here, Owens does not allege nor could he that the "substantial evidence" standard as articulated in section 7A-102 of the Illinois Human Rights Act ( 775 ILCS 5/7A-102(D)(2) (West 2004)) implicates any first amendment concerns, he does not have standing to argue that the Act is facially unconstitutional. See, e.g., Jihan, 127 Ill. 2d at 386 (holding that because no first amendment issue was involved with respect to the constitutionality of the now repealed medical practice act provisions making it a crime to practice midwifery without a license, defendant did not have standing to argue that the statute might be vague as applied to someone else). Accordingly, since Owens has no standing to make a facial challenge to the statute, and since he has failed to argue before the Department that the statute is vague as applied to him, he has waived his right altogether to address the vagueness issue on appeal. See Texaco-Cities Service Pipeline Co., 182 Ill. 2d at 278-79; Carpetland U.S.A., Inc., 201 Ill. 2d at 396-97.
Nevertheless, even if we were to consider the merits of Owens' vagueness contention, for the reasons that follow, we would find that the statute is not unconstitutionally vague, either on its face or as applied to Owens.
It is well established that there is a strong presumption that a statute is constitutional and that the party challenging its validity will bear the burden of clearly establishing that the statute is unconstitutional. People v. Sharpe, 216 Ill. 2d 481, 486-87 (2005); see also Morgan v. Department of Financial Professional Regulation, 374 Ill. App. 3d 275, 292 (2007).
A vagueness challenge is a due process challenge focusing on the specificity of the language of a statute. East St. Louis Federation of Teachers v. East St. Louis School District, 178 Ill. 2d 399, 424-26 (1997). A statute is unconstitutionally vague and violates due process if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute or if there is an absence of standards restricting the discretion of governmental authorities who apply the law. East St. Louis Federation of Teachers, 178 Ill. 2d at 424-26. The terms of a statute cannot be "`so ill-defined that their meaning may be determined at whim rather than by objective criteria.'" East St. Louis Federation of Teachers, 178 Ill. 2d at 425, quoting People v. Burpo, 164 Ill. 2d 261, 266 (1995); see also Morgan, 374 Ill. App. 3d at 292-93. Rather, the statute's terms must be explicit enough to serve as a guide to those who must comply with it. East St. Louis Federation of Teachers, 178 Ill. 2d at 425; see also Morgan, 374 Ill. App. 3d at 292-93. However, mathematical certainty in the language is not required. East St. Louis Federation of Teachers, 178 Ill. 2d at 424-25; see also Morgan, 374 Ill. App. 3d at 292-93. Moreover, a statute will not be considered unconstitutionally vague "`merely because one could imagine hypothetical situations in which the meaning of some terms might be called into question.'" Morgan, 374 Ill. App. 3d at 292, quoting Maun v. Department of Professional Regulation, 299 Ill. App. 3d 388, 397 (1998).
In the present case, the Act specifically defines "substantial evidence" and Owens has failed to show that this definition was not sufficiently precise to guide the parties or the agency. As already noted above, the Act defines "substantial evidence" as "evidence which a reasonable mind accepts as sufficient to support a particular conclusion and which consists of more than a mere scintilla but may be somewhat less than a preponderance." (Emphasis added.) 775 ILCS 5/7A-102(D)(2) (West 2004). Contrary to Owens' assertion that the phrase "may be somewhat less than a preponderance" does not permit a party filing a discrimination charge to know whether his or her claim must be supported by more than a preponderance of the evidence or less than a preponderance of the evidence, the term "may" has clearly been defined as connoting only permission. See Cook County Board of Review v. Property Tax Appeal Board, 334 Ill. App. 3d 56, 59 (2002) ("use of the word `may' is construed as permissive, not mandatory"); see also New American Webster Dictionary (1972) (defining "may" as "have the ability to" or "have permission to" or "be free to"; noting that the term is used to indicate probability and possibility). Moreover, those Illinois cases that have addressed the substantial evidence standard have made clear that substantial evidence does not require more than a preponderance of evidence. See, e.g., Stone v. Department of Human Rights, 299 Ill. App. 3d 306, 314-15 (1998) ("Substantial evidence means more than a mere scintilla but less than a preponderance of the evidence. [Citations.] Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion"); see also Sanders v. United Parcel Service, 142 Ill. App. 3d 362, 364 (1986) (noting that the substantial evidence standard "was deliberately left vague to permit the [Department of Human Rights] some degree of discretion in ascertaining and evaluating the facts"). Accordingly, we find that the substantial evidence standard is not unconstitutionally vague.
Furthermore, Owens has specifically failed to show that the substantial evidence standard is vague as applied to him. Vagueness is an elastic concept, and just because a term is vague to one person, does not necessarily mean that it will be vague to another. See City of Chicago v. Pooh Bah Enterprises, Inc., 224 Ill. 2d 390, 441-42 (2006). Accordingly, where a party raises a vagueness challenge by arguing that a statute is vague as applied, a reviewing court must "evaluate a statute in the context of the specific circumstances in which it was applied to the litigant who contests its validity." Pooh Bah Enterprises, 224 Ill. 2d at 442; see also People v. Ryan, 117 Ill. 2d 28, 34 (1987), quoting United States v. Mazurie, 419 U.S. 544, 550, 42 L. Ed. 2d 706, 713, 95 S. Ct. 710, 714 (1975) (" `[v]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand"). In the present case, we have already held that the mere issuance of two written reprimands did not constitute an adverse employment action. The sparsity of evidence offered by Owens to support the existence of an adverse employment action is therefore outside the confines of the "substantial evidence standard" so that the term, even if otherwise unclear, would at least have sufficient clarity to denote an amount of evidence in excess of that which was provided by Owens. Accordingly, under these circumstances Owens cannot complain that the Act is vague as applied to him. See Parker v. Levy, 417 U.S. 733, 756, 41 L. Ed. 2d 439, 458, 94 S. Ct. 2547, 2562 (1974) ("[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness"); see also Pooh Bah Enterprises, 224 Ill. 2d at 442.
III. CONCLUSION
For the foregoing reasons, the order of chief legal counsel of the Department of Human Rights dismissing Owens' charge is affirmed.
Affirmed.
CAHILL, EJ., and McBRIDE, J., concur.