Galvan v. Cmty. Unit Sch. Dist. No.

Gary Scott Feinerman

Motion granted.

Michael T. Smith, Michael T. Smith & Associates, Roselle, IL, for Plaintiff. Thomas J. Posey, Faegre Baker Daniels LLP, Gwendolyn B. Morales, Scott Cruz, Franczek Radelet PC, Chicago, IL, for Defendant.

Gary Scott Feinerman, United States District Judge

Rogelio Galvan filed this suit against his employer, Community Unit School District No. # 300, alleging national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Doc 1. The District has moved under Federal Rule of Civil Procedure 56 for summary judgment. Doc. 46. Because the summary judgment record shows as a matter of law that Galvan did not suffer a materially adverse employment action, the motion is granted.

The District's opening brief argues that the undisputed facts would not permit Galvan to show that he suffered a materially adverse employment action. Doc. 47 at 8–19. Specifically, the District contends that Galvan was not demoted, suspended, disciplined, terminated, or subject to a loss of pay; that Veilleux's conduct did not interfere with Galvan's job duties; and that Veilleux's assigning Galvan additional rooms to clean, Veilleux's telling Galvan to speak English, Galvan's failure to obtain discretionary overtime, Galvan's alleged depression, and Veilleux's telling Galvan not to ask his colleagues for translation assistance were not materially adverse employment actions. Ibid. Galvan's response brief cites some of the general legal principles set forth above, but makes little to no effort to apply the law to the facts. Doc. 57 at 7–11. Nonetheless, the court will address the supposed materially adverse employment actions identified in Galvan's brief—none of which, it bears mention, involve any demotion, suspension, discipline, termination, or loss of pay (other than overtime).

First, Galvan states that Veilleux “assigned [him] an additional five rooms of work from” the area of a non-Hispanic and younger employee (Ranello), and also that he was assigned more work than three non-Hispanic and younger employees (Ranello, Gromer, and Arrington). Doc. 57 at 8. Under settled precedent, however, additional work within the plaintiff's job description is not a materially adverse employment action. See Lapka v. C h ertoff, 517 F.3d 974, 986 (7th Cir.2008) (holding that the defendant's assignment to the plaintiff of all the office's mandamus cases, which are more difficult than other assignments, was not an adverse employment action because the plaintiff “already handled mandamus cases” and “the fact that she received more of them did not significantly alter her job responsibilities”); Griffin v. Potter, 356 F.3d 824, 826, 829 (7th Cir.2004) (holding that assigning the plaintiff “the office's more difficult EEO investigations” was not an adverse employment action); Fane v. Locke Reynolds, LLP, 480 F.3d 534, 539 (7th Cir.2007) (holding that “even if [the plaintiff] had direct evidence of a heavier workload, harder work assignments do not constitute an adverse employment action”); Haugerud v. Amery Sch. Dist., 259 F.3d 678, 686–87, 692 (7th Cir.2001) (holding that the plaintiff, a female custodian, did not suffer an adverse employment action where she was required to clean restrooms, to shovel snow, and to perform a variety of maintenance tasks usually reserved for outside contractors). It is undisputed that cleaning rooms was within Galvan's job description.

Second, Galvan asserts three non-Hispanic and younger employees “received more favorable treatment in overtime.” Doc. 57 at 8. Lost overtime is a materially adverse employment action only if the plaintiff shows that the overtime was a “significant and recurring part of an employee's total earnings similar to a raise,” but not if the overtime opportunities were “sporadic, irregular, unpredictable, and wholly discretionary on the part of the employer” and thus akin to a “discretionary bonus.” Lewis v. City of Chicago, 496 F.3d 645, 653–54 (7th Cir.2007) (internal quotation marks omitted); see also Henry v. Milwaukee Cnty., 539 F.3d 573, 585–86 (7th Cir.2008) (holding that the lost overtime in that case was a materially adverse employment action because “[i]t is undisputed that overtime pay had been a significant and expected component of the plaintiffs' compensation prior to the institution of the sex-based policy”).

The District argues that the overtime was discretionary, and therefore that the denial of overtime was not a materially adverse employment action. Doc. 47 at 16. Galvan does not respond to that argument or contend (let alone show) that overtime was a significant and recurring part of his total earnings. Galvan has accordingly forfeited any claim based on the denial of overtime. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir.2011) (“[w]e apply [the forfeiture] rule where a party fails to develop arguments related to a discrete issue”); Arlin–Golf, LLC v. Vill. of Arlington Heights, 631 F.3d 818, 822 (7th Cir.2011) (where the party “cited no relevant legal authority to the district court to support the proposition ... the argument is waived”); Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir.2010) (“Failure to respond to an argument—as the Bontes have done here—results in waiver.”); Judge v. Quinn, 612 F.3d 537, 557 (7th Cir.2010) (“perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived”) (internal quotation marks omitted); Humphries v. CBOCS W., Inc., 474 F.3d 387, 407 (7th Cir.2007) (“We agree with the district court's determination that [the plaintiff] waived (forfeited would be the better term) his discrimination claim by devoting only a skeletal argument in response to Cracker Barrel's motion for summary judgment.”), aff'd on other grounds, 553 U.S. 442, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008); Witte v. Wis. Dep't of Corr., 434 F.3d 1031, 1038 (7th Cir.2006) (“It is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered.”). Although forfeiture disposes of the overtime issue, it bears mention that Galvan admits that after the April 2011 overtime opportunity at the basketball tournament, he “continued to volunteer for and be assigned similar overtime opportunities, even when there was not a bilingual custodian working the event.” Doc. 55 at ¶ 40.

Third, Galvan's brief argues that Veilleux's mistreatment of him—the scolding, the embarrassment, the harsh words, the direction to speak English rather than Spanish—constituted a hostile work environment. Doc. 57 at 10–11. A hostile work environment fits within the third general category of adverse employment actions identified by the Seventh Circuit. See Herrnreiter v. Chi. Housing Auth., 315 F.3d 742, 745 (7th Cir.2002) (holding that the third category includes “cases of harassment-mistreatment of an employee by coworkers or supervisors that is sufficiently severe to worsen substantially his conditions of employment as they would be perceived by a reasonable person in the position of the employee”) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 786–88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). The District argues that the undisputed facts would not permit Galvan to show that he suffered a hostile work environment. Doc. 47 at 22–33. “To avoid summary judgment on a hostile work environment claim, a plaintiff must provide sufficient evidence to create a genuine issue of material fact as to four elements: (1) the work environment must have been both subjectively and objectively offensive; (2) [his age] or national origin must have been the cause of the harassment; (3) the conduct must have been severe or pervasive; and (4) there must be a basis for employer liability.” Chaib v. Indiana, 744 F.3d 974, 985 (7th Cir.2014); see also Fugate v. Dolgencorp, LLC, 555 Fed.Appx. 600, 603, 2014 WL 321902, at *2 n. 1 (7th Cir. Jan. 30, 2014) (“We have assumed without deciding that plaintiffs may bring a claim of a hostile work environment under the ADEA.”) (citing Racicot v. Wal – Mart Stores, Inc., 414 F.3d 675, 678 (7th Cir.2005); Bennington v. Caterpillar, Inc., 275 F.3d 654, 660 (7th Cir.2001)). In seeking summary judgment, the District contends that Galvan did not perceive his work environment to be subjectively hostile; that the alleged harassment was not severe or pervasive; that the alleged harassment was not based on Galvan's Mexican or Hispanic ancestry or on his age; and that there is no basis for employer liability because the District exercised reasonable care to prevent and correct any harassing behavior and Galvan unreasonably failed to take advantage of the preventive or corrective opportunities that the District provided. Doc. 47 at 22–33.

Galvan's opposition brief does not expressly acknowledge the elements of the hostile work environment claim, let alone apply those elements to the facts of this case. Doc. 57 at 8–11. The sum and substance of his argument reads as follows: “It is submitted, that based on the facts presented here, there is more than enough evidence for a reasonable fact finder to conclude harassment or a hostile environment occurred and the terms and conditions of Plaintiff's employment have been affected by the actions of his supervisors. The Defendant discounts the actions of the supervisor as non-relevant and also condones the environment that Plaintiff was subjected to.” Id. at 11. At most, and even this is overly generous, other passages in Galvan's brief can be read to implicitly argue the first three elements of a hostile work environment claim: that he perceived his workplace to be subjectively hostile, that the harassment was severe or pervasive, and that the harassment was based on his national origin or age.

But nowhere does Galvan's brief even remotely address the final element of a hostile work environment claim, whether there is a basis for employer liability. On this element, the District's opening brief concedes that Veilleux was Galvan's supervisor; cites Vance v. Ball State University, –––U.S. ––––, 133 S.Ct. 2434, 2439, 186 L.Ed.2d 565 (2013), for the governing standard, which is: “If the supervisor's harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided”; and applies that standard to the facts of this case. Doc. 47 at 30–33. Specifically, the District correctly contends that Veilleux's alleged harassment did not culminate in a tangible employment action, so the District is not strictly liable, and then proceeds with a well-developed and amply-supported argument that because the District appropriately responded to the single complaint that Galvan lodged about Veilleux during Veilleux's tenure, and because Galvan made no other complaints during Veilleux's tenure about Veilleux's allegedly frequent abusive behavior, the District cannot be held liable for Veilleux's conduct. Id. at 31–33 (citing the record materials summarized in the last three paragraphs of the Background section above). The District is right on the merits. See Berry v. Delta Airlines, Inc., 260 F.3d 803, 812–13 (7th Cir.2001) (rejecting employer liability under circumstances comparable to those here); Saxton v. AT & T Co., 10 F.3d 526, 535–36 (7th Cir.1993) (same). In any event, by utterly failing to address the governing standard or to respond to the District's submission, Galvan has forfeited any argument for employer liability, and thus has forfeited the hostile work environment theory of his Title VII and ADEA claims. See Alioto, 651 F.3d at 721; Arlin–Golf, 631 F.3d at 822; Bonte, 624 F.3d at 466; Judge, 612 F.3d at 557; Humphries, 474 F.3d at 407; Witte, 434 F.3d at 1038.

Veilleux's unprofessional behavior towards Galvan, assuming it occurred as Galvan describes it (as noted above, the court must resolve all factual disputes in Galvan's favor on summary judgment), is undoubtedly troubling. But because Galvan has failed to show in his summary judgment materials that he suffered a materially adverse employment action or, for purposes of the hostile work environment issue, that the District could be held liable for Veilleux's conduct, Galvan cannot prevail on his Title VII and ADEA claims. The District's summary judgment motion accordingly is granted. -------- Notes: