Brandenburg v. Earl L. Henderson Trucking, Co.
| Decision Date | 20 July 2011 |
| Docket Number | No. 09-0558-DRH,09-0558-DRH |
| Parties | JULIE BRANDENBURG, Plaintiff, v. EARL L. HENDERSON TRUCKING, CO., LLC., and PREMIUM TRANSPORTATION STAFFING, INC. and PREMIUM ENTERPRISES, INC., Defendants. |
| Court | U.S. District Court — Southern District of Illinois |
I. Introduction and Background
Now before the Court are several motions for summary judgment filed by the parties: (1) Brandenburg's motion for partial summary judgment (Doc. 107); (2) Premium Transportation Staffing, Inc., and Premium Enterprises, Inc.'s second motion for summary judgment (Doc. 115) and (3) Earl L. Henderson Trucking Co.'s motion for summary judgment (Doc. 117). Based on the applicable law and the following, the Court denies the motions.
On December 4, 2009, Julie Brandenburg filed a Second Amended Complaint against her former employers Earl L. Henderson Trucking Co., LLC ("Henderson"), Premium Transportation Staffing, Inc. ("Premium Transportation"), and Premium Enterprises, Inc. ("Premium Enterprises") (Doc. 38). The Second Amended Complaint alleges that defendants discriminated against her because of her gender,that plaintiff protested the discrimination and that she was constructively discharged in violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e, et seq. (Count I) and in violation of the Illinois Human Rights Act, 775 ILCS 5-101, et seq. (Count II). Brandenburg's Second Amended Complaint alleges that in late May or early June 2007, defendants denied her the position of Safety Director because of her gender and then assigned her the duties of the Safety Director without the pay of employees in director positions because of her gender. She also claims that in December 2007, defendants constructively discharged her from her employment.
On June 2, 2010, the Court entered an Order granting in part and denying in part the defendants' motions to dismiss (Doc. 88).1 The Court granted the motion as to her May 2007 failure to promote claim in Count II and as to the claims contained in Count II against Premium Transportation and Premium Trucking. Thereafter, the parties filed the pending motions for summary judgment.
II. Undisputed Facts2
John Kaburick is the owner and CEO of Henderson Trucking and his son, Josh Kaburick, is the COO. In 1999, plaintiff began working for Henderson Trucking as an over-the-road driver. In 2003, she moved to the office and worked in the Safety Department as the Log Clerk, then as the Cargo Claims Clerk and then as AssistantSafety Director in 2004.
Until May 24, 2007, Keith Kruckenberg held the position of Safety Director and he was in charge of the Safety Department. In 2004, Josh Kaburick had plaintiff and other women come in the office over the weekend and help Kruckenberg with his workload. During this time frame, Henderson Trucking changed Brandenburg's title to Assistant Safety Director. Her job was to assist Kruckenberg by helping him catch up with his work and become efficient.
On May 24, 2007, Kruckenberg was fired and the position of Safety Director was eliminated. As a result, Bill Beatty, Director of Recruiting, was promoted to Vice President of Safety and Recruiting. Beatty oversaw the Safety Department and the Recruiting Department. Beatty also took over the duties of the Safety Director. Beatty had never worked in the Safety Department and did not know how to perform the job. During this time, plaintiff was given additional job duties to help Beatty run the Safety Department. She also was given the additional duties of the Claims Clerk because the person who held that position was not fully trained in June 2007 and quit the job in October 2007.
In June 2007, plaintiff's pay rate was $12.30. She did not receive a raise for her new responsibilities at that time. In November 2007, her pay rate increased to $13.00 an hour. Also in June 2007, Henderson Trucking promoted Mike Thompson, head of Lease Operations, to Beatty's former position.
Throughout her employment with Henderson Tucking, Brandenburg received two raises in 2004, one raise in 2005, two raises in 2006 and one raise in 2007.From 2003 to 2007, her pay range went from $7.50 an hour to $13.00 an hour. When Kruckenberg was Safety Director his pay was $25.43 an hour. Kruckenberg's predecessor, Bob Coffey's pay was $24.56 an hour. Mike Thompson's pay increased from $22.10 an hour to $24.04 an hour with his promotion. Beatty's pay was $29.72 an hour.
On December 13, 2007, Brandenburg sent another employee at Henderson Trucking an in-house message inquiring about whether Steve Mulvaney makes more money than Debbie Smith. The next day, Beatty sent plaintiff an email asking her why she was inquiring about other employee's salaries. In response, Brandenburg stated that she was curious and that she was quitting. That morning, Brandenburg quit her job at Henderson Trucking. That same day after she quit, plaintiff sent an email to Josh Kaburick stating:
III. Summary Judgment Standard
Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. Proc. 56(c). A genuine issue of material fact exists when the evidence is such that a reasonable jury could find for the nonmovant. Buscaglia v. United States, 25 F.3d 530, 534 (7th Cir. 1994). Themovant in a motion for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact by specific citation to the record; if the party succeeds in doing so, the burden shifts to the nonmovant to set forth specific facts showing that there is a genuine issue of fact for trial. Fed. R. Civ. Proc. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In considering motions for summary judgment, a court construes all facts and draws all inferences from the record in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The Court recognizes that "summary judgment is frequently inappropriate in discrimination cases because intent, and therefore credibility, is often a crucial issue." McMillian v. Svetanoff, 878 F.2d 186, 188 (7th Cir. 1989). While the Court approaches the question of summary judgment with "special caution" in discrimination cases, "if a plaintiff in a discrimination case is unable to present any evidence to create a genuine issue as to whether the defendant's articulated reason for the firing is the real reason, then summary judgment will be appropriate." Id. at 188-89; see also Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir.1988).
IV. Analysis3
First, the Court addresses plaintiff's motion for partial summary judgment. Specifically, plaintiff moves for summary judgment as to defendants' respectiveaffirmative defenses of failure to mitigate. Plaintiff contends that defendants have produced no evidence that there were jobs comparable to the job of Assistant Safety Director that plaintiff held which plaintiff failed to find or accept. Defendants contend that issues of material fact exist and that this is a question for the jury to resolve. Specifically, defendants contend that plaintiff was not reasonable in her job search and therefore she did not attempt to find comparable employment. Based on the record, the Court agrees with defendants that there are issues of fact regarding mitigation.
The general test of whether a plaintiff has failed to mitigate damages is two-pronged: the defendant must show that (1) the plaintiff failed to exercise reasonable diligence to mitigate her damages; and (2) there was a reasonable likelihood that the plaintiff might have found comparable work by exercising reasonable diligence. Gaddy v. Abex Corp., 884 F.2d 312, 318 (7th Cir.1989); United States v. City of Chicago, 853 F.2d 572, 578 (7th Cir.1988); Hutchison v. Amateur Electronic Supply, Inc. 42 F.3d 1037, 1044 (7th Cir.1994). The plaintiff's burden to mitigate damages does not require success, but only an honest, good faith effort to locate comparable employment. See E.E.O.C. v. Ilona of Hungary, Inc., 97 F.3d 204, 216 (7th Cir.1996); Smith, 969 F.2d at 438-439.
Here, the Court finds that there are issues of fact as to the mitigation issue. Plaintiff testified that she did not apply for any jobs at truck driving companies; that she applied for less than ten driving jobs and that she applied for only two managerial positions. In her search for a new job, plaintiff responded to job listingsposted on internet job sites and/or printed in local newspapers. According to her job search log, plaintiff searched for employment from January 2008 to December 2009. During this time, plaintiff also took time off from the job search to enoy time with her children. Further, that she testified that she did not always follow-up with companies after sending her resume. Plaintiff stated that she did not utilize a headhunter; subscribe to any internet posting sites and did not apply to any temporary agencies or job placement agencies. She further stated that she did not use a vocational rehabilitation specialist. Clearly, there are questions of fact as to whether plaintiff's attempt to find comparable employment was reasonable.
Before addressing the merits of defendants' motions for summary judgment, the Court must resolve Henderson's motion to strike portions of plaintiff's memorandum in opposition to Earl L. Henderson's motion for summary judgment (Doc. 129). Henderson contends that both plaintiff's memorandum and exhibits contains several inadmissable hearsay statements. Specifically,...
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