Lichauco v. Kelly
| Decision Date | 09 April 2019 |
| Docket Number | Case No. 1:17-cv-7289 |
| Parties | MANUEL M. LICHAUCO, Plaintiff, v. JOHN F. KELLY, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Plaintiff Manuel M. Lichauco filed this employment discrimination suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") against Defendant Secretary of the Department of Homeland Security, alleging race and national origin discrimination. (Dkt. 1.) The parties consented to proceed before this Court on December 8, 2017. (Dkt. 9.) Defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. 26.) For the reasons set forth herein, the Court grants Defendant's motion.
As an initial matter, the Court did not consider statements of fact made without reference to the record in violation of Local Rule 56.1 and also disregarded any improper argument or opinion contained in Plaintiff's Response to Defendant's Statement of Material Facts (Dkt. 33) and Plaintiff's Statement of Additional Facts (Dkt. 34). See Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir.2005) (); Phillips v. Quality Terminal Servs., LLC, 855 F. Supp. 2d 764, 771 (N.D. Ill. 2012) (). The Court also deemed admitted any fact that Plaintiff disputed in whole or in part without citing evidence in the record that adequately rebutted the stated fact. See Rule 56(c)(1)(A) (); Phillips, 855 F. Supp. 2d at 772 ("[W[here a party improperly denies a statement of fact by failing to provide adequate or proper record support for the denial, the Court deems that statement of fact to be admitted.").
Plaintiff is an Asian male of Filipino decent.1 (Dkt. 33 at ¶ 3.) From 2008 until 2015, Plaintiff was employed by the Transportation Security Administration ("TSA") as a Master Coordination Center Officer ("MCCO") at O'Hare Airport. (Id. at ¶ 2.) MCCOs are charged with, among other things, collecting information about ongoing incidents at the airport and reporting such information to the TSA leadership. (Id. at ¶ 3.) In 2015, Plaintiff was demoted to his original position as a transportation security officer due to his inability to satisfactorily perform the responsibilities of an MCCO. (Id. at ¶¶ 3, 5.) Prior to the demotion, the TSA paid for Plaintiff to take both online and in-person classes aimed at improving his written and oral communication skills. (Id. at ¶ 6.) The TSA also issued letters of guidance to Plaintiff and placed him on a Performance Improvement Plan ("PIP") implemented to assist Plaintiff with his job performance. (Id.) When Plaintiff's work failed to improve, the TSA issued a notice of removal which was later reduced to a demotion. (Id. at ¶ 7.)
Plaintiff subsequently filed Equal Employment Opportunity ("EEO") complaints and a federal lawsuit ("Lichauco I") against the TSA, alleging that the letters of guidance and PIP werepretext for retaliation and discrimination based on Plaintiff's race and national origin, and that the TSA subjected him to a hostile work environment. (Id. at ¶ 8.) The Court in Lichauco I rejected Plaintiff's claims and granted summary judgment in favor of the TSA. (Id. at ¶ 9.) While Lichauco I remained pending, Plaintiff had ongoing EEO claims (also related to race/national origin discrimination and a hostile work environment) against the TSA arising from an earlier period of employment as an MCCO. Those claims are the subject of the instant lawsuit.2 (Id. at ¶ 10.)
In July of 2009, an audit of the TSA operations at O'Hare revealed several deficient areas, including the Coordination Center, which was deemed as ineffectively managing security incidents. (Id. at ¶¶ 11-12.) As a result of the negative audit, Deputy Federal Security Director Kenneth Fletcher replaced the previous Coordination Center manager with Brian Lucas, who completed a comprehensive review of all personnel assigned to the Coordination Center. (Id. at ¶¶ 12-13.) During his review, Lucas received numerous complaints about Plaintiff's ability to communicate effectively over the phone, especially when dealing with fast-paced security incidents. (Id. at ¶¶ 14, 16.) Accordingly, in August of 2009, Plaintiff's duties were altered to focus on administrative tasks, but he remained an MCCO at the same salary and grade level. (Id. at ¶¶ 11, 19.) Plaintiff claims that his shift to administrative work prompted his co-workers to call him "secretary" and laugh. (Id. at ¶ 20.) At the time, Plaintiff took the comment as a joke and did not report the incident to his supervisors.3 (Id.) Additional comments about Plaintiff's administrative duties, viewed in a light most favorable to Plaintiff, form the basis of his claims:(1) On August 17, 2009, supervisor Dawn Johnson-Bridges called Plaintiff "secretary" and said he should "wear a skirt," causing Plaintiff's co-workers to laugh (Dkt. 38 at ¶ 2); (2) On August 18, 2009, Johnson-Bridges said "the secretary is back" when Plaintiff returned from a break during work (id. at ¶ 3); and (3) Johnson-Bridges again told Plaintiff on August 22, 2009 that he should "wear a skirt" which prompted Lucas to ask whether Plaintiff can do a "lap dance too" (id. at ¶ 4).
Meanwhile, supervisors continued to receive numerous complaints about Plaintiff's inability to effectively communicate in English, several of which Plaintiff learned about from his managers. (Dkt. 33 at ¶¶ 24-25.) As a result, Lucas questioned Plaintiff about his English language ability, including whether he processed words in his native language, which Defendant claims Lucas asked to determine what help Plaintiff may have needed to effectively perform his duties. (Id. at ¶ 26; Defendant's Statement of Material Facts ("DSMF") Dkt. 28 at ¶ 26.) Lucas' comment prompted Plaintiff to write a letter to the Federal Security Director and other management officials. (Dkt. 38 at ¶ 6.) In response to Plaintiff's letter, the Assistant Federal Security Director Mark Lendvay4 arranged a meeting with Lucas and Plaintiff where Lucas admitted to having trouble with Plaintiff's accent. (Dkt. 38 at ¶ 7.) Lendvay ultimately concluded that Lucas and Plaintiff could continue to work together and offered Plaintiff the opportunity to meet with him again if further issues arose. (Dkt. 33 at ¶ 28.) Plaintiff did not do so. (Id.)
Plaintiff also contends that Lucas said Plaintiff could "fix anything because [Plaintiff] is a mercenary," although Lucas denied making such a statement. (Id. at ¶ 23.) While Plaintiff testified at his deposition that he did not take this comment to be based on his race or national origin, he submitted an affidavit stating that he understood mercenary to be a "foreign national originconcept." (Id.) As discussed above, Plaintiff cannot create an issue of fact by submitting an affidavit contradicting prior sworn testimony. Buckner v. Sam's Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996). The Court will therefore only consider Plaintiff's deposition testimony about understanding Lucas' comment to be race- and national origin-neutral.
On September 1, 2009, Johnson-Bridges indicated in a performance evaluation that Plaintiff needed to accept new responsibilities and policy changes with a positive attitude. (Dkt. 38 at ¶ 8.) Plaintiff asked for specific examples, which led Johnson-Bridges to complain to Lucas, who then informed Plaintiff that he was "becoming problem personnel at the Coordination Center." (Dkt. 38 at ¶¶ 8-9.) Thereafter, Plaintiff became interested in a promotional opportunity as an "expert MCCO," but Lucas told Plaintiff he was not qualified and that "[Plaintiff was] consistent with all of [his] inconsistencies on the job." (Id. at ¶ 10.) Plaintiff insists he did not get the promotion because of his accent, yet there is no evidence that Plaintiff actually applied for the promotion. (Id.)
In April of 2010, Plaintiff answered a call from manager Dale Harris by stating "Manny speaking." (Id. at ¶ 11.) Harris responded: Plaintiff said "no sir," and Harris countered "you call me sir again, I will put your lights out and put a headlock on you." (Id. at ¶ 11; Dkt. 33 at ¶ 34.) After Harris learned that the comments upset Plaintiff, Harris assured Plaintiff he was only joking and suggested that they shake hands and forget about the incident. (Dkt. 33 at ¶ 36.) Plaintiff complained about Harris' conduct to Deputy Assistant Federal Security Director Roger Romano, who conducted an investigation into the matter. (Id. at ¶ 38.) Romano concluded that Harris did not intend to bully or physically threaten Plaintiff and that his comments were not based on Plaintiff's race or national origin. (Id.)As a result of Harris' poor judgment, however, and as a remedial measure, the TSA issued a corrective action to Harris and took steps to minimize Harris' contact with Plaintiff. (Id. at ¶ 39.) Romano also told Plaintiff to contact him immediately if any further issues arose and assured Plaintiff that his complaints would be addressed immediately. (Id.)
The parties dispute the details surrounding Plaintiff's request for leave in April of 2010. Defendant insists that Johnson-Bridges denied Plaintiff's request for a day off because Johnson-Bridges was unable to find a replacement with only three-days' notice. (DSMF at ¶ 40.) While Plaintiff counters that he only requested one-hour...
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