Memorandum Opinion and Order
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.
Background
The facts are set forth as favorably to Galvan as the record and Local Rule 56.1 allow. See Hanners v. Trent,
Ray Veilleux was the Building Manager at Jacobs and Galvan’s supervisor from July 2009 to September 2011. Doc. 55 at ¶ 9; Doc. 64 at ,¶ 4. During that time, Veilleux told Galvan to “speak English” as much as “two or three times a day” and “sometimes once a week.” Doc. 55 at ¶ 12; see also id. at ¶¶ 21-23, 25 (setting forth specific instances). Galvan “didn’t take those comments to heart” because they “didn’t bother [him] too much.” Id. at ¶ 12 (original alterations omitted). Moreover, Galvan admits that Veilleux “did not interfere with his ability to perform the essen
Galvan believes that Velliux’s treatment , of him was motivated by a desire to eliminate Hispanic and older employees. Id. at ¶¶ 5, 7, 10. That said, Galvan concedes that he had no evidence to support his belief; moreover, Veilleux never disciplined Galvan for any reason, including his difficulties with the English language or for speaking Spanish, and Veilleux never counseled Galvan for performance-related reasons or made any negative comments to him about his work performance. Doe. 55 at ¶¶ 15,19.
In April 2011, Galvan volunteered for an overtime opportunity to work as the sole custodian at a basketball tournament held by an outside party in the Jacobs gymnasium. Doc. 55 at ¶¶ 28-29. Days before the event, Veilleux warned Galvan not to request translation assistance from another custodian if he could not understand requests for urgent tasks from the outside party. Id. at ¶¶ 29-32, 35. Veilleux told Galvan that if he received complaints from the outside party about Galvan’s inability to communicate in English, Galvan would no longer receive overtime or “comp time” opportunities that would require him to work alone, although he would remain eligible for jobs when bilingual colleagues would be present. Id. at ¶ 36; Doc. 64 at ¶ 8. It was during this conversation that Veilleux pointed at and scolded Galvan. Doc. 55 at ¶ 39; Doc. 64 at ¶ 6. Galvan worked the event without a problem, Veil-leux did not receive any complaints, and Veilleux never again warned Galvan about seeking translation help from his colleagues. Doc. 55 at ¶¶ 40-41.
At some point, Veilleux assigned Galvan the responsibility for cleaning several rooms that had been in the area to which Jim Ranallo, another District custodian, was assigned. Doc. 64 at ¶ 12. Galvan believes that Veilleux assigned him additional rooms so that he would “fail” to perform his own job assignments, although it turns out that Galvan was able to complete all of the work and suffered no repercussions. Doc. 55 at ¶¶ 15, 45; Doc. 64 at ¶ 12. Additionally, Veilleux assigned Gal-van more work than three non-Hispanic colleagues and gave those colleagues more overtime. Doc. 64 at ¶¶ 13-14. The colleagues were Ranallo, who was about “about” fifty years old; Jim Gromer, who was between thirty-five and forty years old; and Jason Arrington, who was about thirty years old. Id. at ¶ 13.
The District maintains policies, including an Equal Opportunity Policy, that prohibit discrimination and harassment. Doc. 55 at ¶¶ 53-54. District employees are instructed to report claims of discrimination or harassment to the Nondiscrimination Coordinator or to use the Uniform Grievance Procedure. Id. at ¶ 55. On or about May 5, 2011, a union official notified Jacobs’s principal, Shelly Nacke, that Galvan complained that Veilleux had told him to speak English; in response, Nacke assigned Rick Johnson, an associate principal with supervisory authority over Veilleux, to investigate. Id. at ¶ 56. At a meeting that day, Veilleux told Johnson that Gal-van’s difficulties with English hindered Galvan’s ability to understand instructions
In July 2011, the new principal of Jacobs, Ami Engel, met with Veilleux to convey her expectations regarding the matters raised in Galvan’s May 2011 complaint. Id. at ¶ 62. Specifically, Engel explained to Veilleux that Jacobs services all members of the community, including those who do not speak English well or at all. Id. at ¶ 63. Engel instructed Veilleux that he could not tell Galvan or any other employee that they must learn and/or speak English, and she in fact suggested that Veilleux learn some Spanish to help him communicate with staff members. Ibid. Veilleux ultimately resigned his employment at Jacobs on September 16, 2011. Id. at ¶ 63.
On October 3, 2011, Galvan attended a meeting with Engel, a human resources representative who served as Galvan’s translator that day, another Jacobs custodian, and the union official who had conveyed Galvan’s complaint to Nacke in May 2011. Id. at ¶ 64. The purpose of the meeting was to address a complaint that Galvan had made against the other custodian as well as a new complaint that Gal-van had made against Veilleux on September 30, 2011, two weeks after Veilleux’s resignation on September 16. Ibid. Specifically, Galvan complained that on September 16, Veilleux came upon Galvan watching a Spanish-speaking television program and said, “No Spanish, only English.” Id. at ¶ 65. Because Veilleux had resigned on September 16, Engel asked Galvan whether anybody else had told him that he needed to speak English, and Gal-van responded that nobody else had. Id. at ¶ 66. Engel told Galvan that if anybody else told him that he had to speak English, he should tell her or another Jacobs administrator or file a formal complaint’under the District’s uniform grievance procedure. Ibid. To date, Engel and other Jacobs administrators have received no new complaints from Galvan that anybody has t'old him that he must speak English while at work. Ibid.
Discussion
A plaintiff alleging discrimination under Title VII and the ADEA may defeat summary judgment under the direct method or the indirect method. See Andrews v. CBOCS W., Inc.,
(1) cases in which the employee’s compensation, benefits or other financial terms of employment are diminished, including cases where employment is terminated; (2) cases in which a nominally lateral transfer without a change in financial terms significantly reduces the employee’s career prospects by preventing him from using the skills in which he is trained and experienced; and (3) [clases in which the employee is not moved to a different job or the skill requirements of his present job altered, but the conditions in which he works are changed in a way that subjects him to humiliating, degrading, unsafe, unhealthful, or otherwise significantly negative alteration in his workplace environment.
Tart v. Ill. Power Co.,
The District’s opening brief argues that the undisputed facts would not permit Gal-van 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).
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,
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,
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.,
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
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. -,
Conclusion
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 Gal-van 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.
Notes
In his Local Rule 56.1(b)(3)(B) response, Gal-van cites a portion of his deposition transcript in which the examining attorney quoted an April 2012 letter from Galvan to union officials, which stated: “Every year during the time of school breaks in winter, spring and summer, I've been instructed to move in a different work shift without my consent. I did not get the 25 cent raise that was agreed in union contract when involuntarily transferring of shifts. This situation has been going on for too many years now until today. According to my understanding of the Despa [union] contract, this policy has been broken. I will appreciate if you answer to my request in writing.” Doc. 55 at ¶ 14. Nowhere in his summary judgment papers does Galvan expressly maintain that the alleged denial of the 25 cent raise resulted from national origin or age discrimination; moreover, Galvan does not identify who was responsible for denying the raise, which is important because Veilleux is the only person in a position of authority alleged to have harbored class-based animus against him. See Metzger v. Ill . State Police,