Marski v. Courier Express One, Inc.

• Decision Date: 29 September 2021
• Docket Number: 19 CV 4132
• Parties: MICHELLE MARSKI, Plaintiff, v. COURIER EXPRESS ONE, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

MICHELLE MARSKI, Plaintiff,
v.
COURIER EXPRESS ONE, INC., et al., Defendants.

No. 19 CV 4132

United States District Court, N.D. Illinois, Eastern Division

September 29, 2021

MEMORANDUM OPINION AND ORDER

John Robert Blakey United States District Judge

Plaintiff Michelle Marski brings suit against Defendants Courier Express One, Inc., PreCC, Inc., Vertek, LLC, Dispatch Express, Inc., and Anthony Urso, alleging: sex discrimination in violation of Title VII of the Civil Rights Act of 1964, disability discrimination in violation of the Americans with Disabilities Act (ADA), age discrimination in violation the Age Discrimination in Employment Act (ADEA), and sex, disability, and age discrimination in violation of the Illinois Human Rights Act (IHRA) (Counts I, III, VI and IX respectively); retaliation in violation of Title VII, the ADA, the ADEA, and the IHRA (Counts II, V, VII, and XI respectively); failure to accommodate under the ADA and the IHRA (Counts IV and X respectively); discriminatory conduct in violation of the Equal Pay Act (Count VIII); intentional infliction of emotional distress (Count XII); violation of the Illinois Wage Payment Collection Act (IWPCA) (Count XIII); violation of the Fair Labor Standards Act (FLSA) (Count XIV); violation of the Illinois Minimum Wage Law (IMWL) (Count

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XV); violation of ERISA (Count XVI); violation of the Family and Medical Leave Act (FMLA) (Count XVII); and defamation (Count XVIII). [2].

Defendants Courier, Vertek, Dispatch Express, and Urso now move for summary judgment in favor of Courier on Counts I-XVII; in favor of Vertek and Dispatch Express on Counts I, III, VI, VIII, IX, XII, XIV, XV, and XVII; and in favor of Urso on Counts XII, XIV, XV, XVII, XVIII. [143]. Separately, Defendants PreCC and Urso move for summary judgment in favor of PreCC on Counts I, III, VI, VIII, IX, XII, XIV, and XV-XVII; and in favor of Urso on Counts XII, XIV, XV, XVII, XVIII. [149].

For the reasons explained below, this Court grants summary judgment in favor of Defendants on all counts.

I. Relevant Facts and Procedural History

A. PreCC

In May 2015, PreCC^[1] hired Plaintiff to work as an administrative assistant to Pam Rebhorn, PreCC's Chief Operating Officer, at an hourly rate of $18.00. [173] ¶ 3; [197] ¶ 40. In February 2016, Plaintiff assumed the position of HR/Payroll Supervisor. [154] at 30-31; [172] ¶¶ 71-72. In connection with this change in position, PreCC increased Plaintiff's compensation from $18.00 per hour to an annual salary of approximately $48, 100 (or $925 per week) with no overtime permitted. [154] at 31; [196] ¶ 72; [197] ¶ 43. In February 2017, Plaintiff's title changed from

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HR/Payroll Supervisor to HR/Payroll Manager, and Premier increased her salary to $57, 200 per year (or $1, 100 per week). [154] at 31; [196] ¶ 76.

Although the parties dispute various aspects of Plaintiff's responsibilities as a Payroll Supervisor, and later Payroll Manager, the record clearly establishes that Plaintiff's responsibilities included training managers how to discipline employees; establishing payroll deadlines; creating “checks and balances to reduce the amount of manual checks”; holding “contractors accountable” for “money they owed Premier”; holding Premier “locations accountable for the timely reporting of PTO”; protesting and appealing worker's compensation and unemployment claims; requiring managers to document their verbal warnings to employees, interpreting FLSA to identify exempt employees; identifying instances of employee misconduct and violations of company policy; and “completely restructure[ing] payroll and HR.” [1513] at 23, 25-28, 32, 96, 98-100, 110; [151-4] at 41.

Plaintiff, who is now forty-seven, and suffers from migraine headaches and fibromyalgia, the latter since at least 2012, [146-2] at 23; [151-3] at 101; [172] ¶ 30, alleges that, while employed at PreCC, she experienced discriminatory treatment due to her sex, age, and disability status. Plaintiff contends that Defendant Urso, the Chief Operating Officer of PreCC, made discriminatory comments and subjected her to violent outbursts during her employment. [146] ¶ 42; [172] ¶ 3; [190] at 11. For example, in May 2017, Plaintiff alleges that Urso “threatened Marski's job and kicked a garbage bin into Marski's office” because Urso was displeased with the results of a company audit. [197] ¶ 56. Defendants PreCC and Urso deny this incident occurred.

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Id. But Defendants PreCC and Urso admit that “Urso would yell when he got upset because business matters did not go his way, and he yelled at a lot of people regardless of age or gender.” [192] ¶ 17.

Plaintiff further alleges Premier CC paid her wages lower than those of Richard Healy, the HR Director for Vertek LLC, an entity partially owned by Urso, even though she and Healy performed similar work. [192] ¶ 21; [197] ¶¶ 34, 47. The record shows that Healy and Plaintiff reported to different supervisors and contains no information regarding Healy's responsibilities as HR Manager, Healy's age, or Healy's disability status.

In addition, Plaintiff asserts Defendants interfered with her leave under the FMLA following surgery in December 2016. [197] ¶ 48. Plaintiff asserts that PreCC employees repeatedly contacted her about work-related issues and that company employees delivered work assignments to her house during her leave. Id. Defendants PreCC and Urso, on the other hand, deny that Plaintiff received work assignments while on leave, maintaining instead that Plaintiff requested to work from home because she could not afford unpaid leave. [192] ¶ 28.

Plaintiff contends that her FMLA leave was recertified through the end of January 2017, [192] ¶ 29, but that Defendant Urso contacted her in mid-January requiring her to attend a meeting in the office, [151] ¶ 30; [172] ¶ 79. Plaintiff states that she attended the meeting for fear of losing her job. [154] at 60-61. Defendants dispute this account, asserting that Plaintiff voluntarily came to the office for the meeting. [151] ¶ 30; [197] ¶ 50.

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Plaintiff also claims that a PreCC employee disclosed Plaintiff's medical information to another individual. [192] ¶ 31.

Lastly, Plaintiff claims that, because she handled work matters during scheduled days off in December 2017, Urso permitted Plaintiff to roll over paid time off (PTO) accrued in 2017 into the 2018 calendar year. [197] ¶ 57. Defendants Urso and PreCC dispute this account. Id.

In July 2018, Plaintiff left PreCC after PreCC's sale to QualTek/NX Utilities. [197] ¶ 33.

B. Courier Express One, Inc.

In July 2018, Urso hired Plaintiff to work as HR/Payroll Manager at his new logistics company, Courier Express One, Inc. [172] ¶ 9; [192] ¶ 5. Courier paid Plaintiff an annual salary of $62, 400 (or $1, 200 per week) again with no overtime permitted. [196] ¶91. As Payroll Manager, Plaintiff generally held the same responsibilities that she had at PreCC. [151-3] at 25.

Plaintiff alleges further employment discrimination based upon her sex, age, and disability, during her time at Courier. Plaintiff again contends that Defendant Urso made discriminatory comments and subjected her to violent outbursts during her employment. [172] ¶¶ 43-44, 46. Specifically, Plaintiff identifies a remark by Defendant Urso around the time of Plaintiff's birthday that Plaintiff was “so old, ” and a 2018 remark by Urso that he did not “know why we hire women” (in reference to a female employee who fell and injured herself on the job). Id. ¶ 42. Defendants Urso and Courier deny that Urso made these statements. [196] ¶ 96. But Plaintiff and

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Defendants Courier and Urso concede that Urso “yelled at and complained about everyone” and that “Urso's outbursts were mainly directed at” Plaintiff and “one male employee.” [172] ¶46.

In support of her employment discrimination claims against Courier and Urso, Plaintiff also repeats her assertion that she received lower compensation than Richard Healy, despite the two allegedly performing similar work. [196] ¶ 76. Additionally, Plaintiff asserts that Courier and Urso failed to give her a reasonable accommodation for her migraine headaches, other than allowing her to leave the office and work from home when she felt unwell. [172] ¶ 30.

Plaintiff also claims that Courier and Urso interfered with her paid time off (PTO). Specifically, Plaintiff states that she requested PTO days in December 2018 and January 2019, but that Courier and Urso ultimately required her to work during at least some of her time off. [196] ¶ 99. Defendants dispute this account, citing evidence that the work tasks identified by Plaintiff took place on days when she did not have scheduled PTO. Id.

Plaintiff stopped working for Courier in February 2019. [172] ¶ 28. The morning of February 5, 2019, Plaintiff sent Urso an email describing problems she was having with various company managers and stating that she had “no authority over anyone in this company.” [196] ¶ 100. After receiving Plaintiff's email, Defendant purportedly called Plaintiff, yelled “You better never send another fucking email like that, ” and used other profanities. Id. ¶ 101. Following Defendant's phone call, Plaintiff felt ill and left the office to work from home. Id. ¶ 102.

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Upon learning that Plaintiff had gone home, Defendant sent an email to Plaintiff at 9:01 a.m. stating: “I was just informed you left for the day. If you can't handle the job, let me know so I can find someone else.” Id. ¶ 103. Plaintiff responded to Defendant's email that she felt threatened by his comments and was going to see her doctor. Id. ¶ 104. Defendant emailed Plaintiff at least two additional times that morning. Id. ¶¶ 105-106. He explained to Plaintiff that he hoped she felt better and requested that she inform him by the end of the day if she was quitting. Id. At 1:50 p.m., Plaintiff emailed Defendant her updated annual FMLA paperwork for...