Zayadeen v. Abbott Molecular, Inc.
| Decision Date | 30 January 2013 |
| Docket Number | 10 C 4621 |
| Parties | BASHAR ZAYADEEN, Plaintiff, v. ABBOTT MOLECULAR, INC., and NICK SEMEDALAS, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Bashar Zayadeen brought this suit against his former employer, Abbott Molecular, Inc. ("AMD"), and his former supervisor, Nick Semedalas, alleging that he was subjected to a hostile work environment, discriminated against on account of his race and national origin, and retaliated against for complaining about the harassment, all in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Illinois Human Rights Act ("IHRA"), 775 ILCS 5/1-101 et seq. Doc. 22. Defendants have moved for summary judgment. Doc. 41. The motion is granted in part and denied in part.
The facts must be stated as favorably to Zayadeen, the non-movant, as permitted by the record and Local Rule 56.1. By reciting these facts, the court does not intend to endorse them or to vouch for their truth.
In 2004, Zayadeen began working for Abbot Labs as a Financial Analyst. Doc. 48 at ¶ 9; Doc. 43-5 at 12, 64-65. In July 2007, Zayadeen became a Senior Financial Analyst at the DesPlaines, Illinois, headquarters of AMD, where he remained employed until July 2010. Doc. 48 at ¶¶ 9-10. AMD is a global company in the healthcare industry. Id. at ¶ 1.
Zayadeen was born in Amman, Jordan, and is Arab. Doc. 48 at ¶ 58; Doc. 57 at ¶ 1. Zayadeen claims that he was harassed at AMD by fellow employees Peter Karabatsos, Marc Heller, and Nick Semedalas on account of his race and national origin. Doc. 48 at ¶ 63; Doc. 43-5 at 25. Semedalas and Karabatsos gave Zayadeen the nickname "Borat," in reference to the title character in the movie, Borat: Cultural Learnings of America for Make Benefit of Glorious Nation of Kazakhstan. Doc. 48 at ¶ 60; Doc. 57 at ¶¶ 7a, 9. Borat is a comedy about a fictional Kazakh journalist, Borat, who visits the United States to make a documentary about American culture. Borat has unruly hair, a bushy mustache, a thick accent, and profoundly chauvinistic and anti-Semitic views. Doc. 57 at ¶ 8; Doc. 43-6 at 18. Much of the film's humor stems from the culture shock that Borat experiences in the United States, and from the shock that Borat causes those he encounters in this country.
Karabatsos and Semedalas routinely called Zayadeen "Borat" and encouraged other employees to do so as well, including employees senior to Zayadeen. Karabatsos and Semedalas told other employees that Zayadeen was from Kazakhstan, poked fun at the similarity of Zayadeen's and Borat's accent and appearance, and told Zayadeen that Americans "don't do or think the way your people in Kazakhstan [do]." Doc. 48 at ¶ 60; Doc. 57 at ¶¶ 7b-e, 9, 11, 20-21, 24; Doc. 43-5 at 20. These comments occurred in an open cubical area and were overheard by other employees, including those senior to Zayadeen and at least one employee in the Human Resources Department. Doc. 57 at ¶ 19-24. Other isolated incidents of harassment included:
Zayadeen was the only Jordanian or Arab in his immediate department, and he did not observe other minorities receive similar treatment. Doc. 57 at ¶¶ 16-18; Doc. 49-9 at ¶¶ 5-10.
Zayadeen never complained about the harassment directly to his superiors or to the Human Resources Department, Doc. 48 at ¶¶ 65, 81; Doc. 43-6 at 6, but he did repeatedly ask Semedalas and Karabatsos to stop calling him Borat because he found it offensive, Doc. 57 at ¶ 25. Zayadeen's supervisor, Ron Johnson, overheard Zayadeen complain about the harassment but took no steps to prevent it. Doc. 48 at ¶ 65; Doc. 57 at ¶ 14; Doc. 43-5 at 23, 29, 60. Another AMD employee, Paul Clark, also overheard the name-calling and believed that it upset Zayadeen. Doc. 48 at ¶ 80; Doc. 57 at ¶ 23; Doc. 43-6 at 6.
By the end of 2008, the Borat harassment had ceased. Doc. 48 at ¶¶ 59, 64; Doc. 43-5 at 21-22; Doc. 22 at ¶¶ 18-19, 21, 24, 26, 29. However, from November 2008 through March 2009, Semedalas continued to harass Zayadeen by blaming him for problems at work that were notZayadeen's fault. Doc. 48 at ¶¶ 59, 64; Doc. 57 at ¶ 15. Zayadeen recalls two specific instances of such harassment: in early 2009, Semedalas came to Zayadeen's cubical and yelled at him for supposedly failing to make a budget, and in February or March 2009, Semedalas yelled at Zayadeen for double counting assets on the books of AMD and Ibis, a company that Abbott had recently acquired. Doc. 57 at ¶ 15; Doc. 43-5 at 27-29, 60.
In 2008, Johnson gave Zayadeen a lukewarm performance review. Johnson noted that Zayadeen did not always complete his work on time, that he failed to maintain an adequate version control system, that he could not complete his work without significant help from Johnson, that he had trouble communicating critical information to his audience, and that his balance sheet analysis did not always reconcile with the ledger. Doc. 48 at ¶¶ 15-16, 22; Doc. 43-5 at 108-09. Johnson initially planned on giving Zayadeen an overall "Partially Achieved Expectations" rating. Doc. 48 at ¶ 17. That rating would have been the second lowest of the four possible ratings: Exceeds Expectations, Achieved Expectations, Partially Achieved Expectations, and Not Achieved Expectations, Doc. 48 at ¶ 18, and likely would have prevented Zayadeen from applying to different positions at Abbott. Doc. 48 at ¶ 21. Not wanting to restrict Zayadeen's career, Johnson gave Zayadeen's overall rating to "Achieved Expectations." Doc. 48 at ¶¶ 19-20; Doc. 49-12 at 2. As a result of this rating, Zayadeen received a 3% merit increase in pay. Doc. 57 at ¶ 26.
In January 2009, Heller became Zayadeen's supervisor. Doc. 48 at ¶ 13. Like Johnson, Heller found Zayadeen's performance to be subpar. Doc. 48 at ¶ 23. Heller discovered that Zayadeen double-counted expenditures, that he was struggling to reconcile the Developmentaland Clinical Inventory ("Dev/Clin") account, and that he had difficulty explaining to company personnel why the present accounting data varied from prior forecasts. Doc. 48 at ¶¶ 26-28. Zayadeen claims that his troubles with the Dev/Clin account were actually caused by another individual's poor work. Doc. 48 at ¶ 27; Doc. 49-9 at ¶ 13.
In June 2009, Heller wrote a Summary of Performance Expectations ("SPE") letter to Zayadeen "to provide a foundation to assist [Zayadeen] in improving his performance." Doc. 48 at ¶¶ 29-30, 33; Doc. 43-5 at 213-19. An SPE is a formal step used by Abbott to manage its employees' performance problems. Doc. 48 at ¶ 31. If an employee fails to address adequately the issues raised in an SPE, the employee may be issued a Performance Improvement Plan ("PIP"), which is the final step in Abbott's performance management process. Doc. 48 at ¶ 32. Heller reviewed the SPE with Semedalas to make him aware of Zayadeen's performance issues because on June 1, 2009, Semedalas was to become Zayadeen's supervisor. Doc. 48 at ¶¶ 14, 34; Doc. 57 at ¶ 29. Despite these documented performance issues, two senior directors for whom Zayadeen provided accounting services told Zayadeen in June 2009 that he had been doing a good job. Doc. 57 at ¶ 28; Doc. 43-5 at 32; Doc. 49-19 at 3.
In June 2009, shortly after receiving the SPE letter, Zayadeen requested a personal leave of absence ("PLOA") to attend his brother's wedding in Jordan and to address some issues with his parents' estate. Doc. 48 at ¶ 37; Doc. 57 at ¶ 30; Doc. 43-5 at 69. On July 2, Semedalas approved Zayadeen's request for leave from July 13, 2009 through November 15, 2009. Doc. 48 at ¶ 41; Doc. 57 at ¶ 31; Doc. 43-5 at 77. Semedalas noted on the PLOA request that Zayadeen was an employee in good standing. Doc. 57 at ¶ 27.
Semedalas testified that because Zayadeen was the only individual from the finance group providing support for the R&D Department and because he did not have time to cover for Zayadeen, he decided to immediately fill Zayadeen's position. Id. at ¶ 36. Semedalas says that Zayadeen's past performance played no role in his decision to post the position. Id. at ¶ 38. Semedalas began the process of posting the position before Zayadeen went on leave, and eventually posted it as a "permanent position." Id. at ¶¶ 34-35. Semedalas did not hire a replacement until November 13, 2009, and the replacement did not begin work until December 28, 2009. Id. at ¶ 40.
Before taking leave, Zayadeen was given a copy of AMD's PLOA policy, which stated that his job was not guaranteed to be available when he returned; whether the job remained available would be up to Semedalas. Doc. 48 at ¶¶ 38-39; Doc. 43-2 at ¶ 8, p. 52; Doc. 43-5 at 58, 71. (Zayadeen also was given an obsolete version of the PLOA policy, which did not include the proviso about there being no such guarantee, but it is undisputed that Zayadeen was given the...
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