Law Firms Mentioned: Seyfarth Shaw | Weiss Ortiz

Organizations Mentioned: North Shore University Health System

By Brandi O. Brown, J.D.

A patient support associate for a healthcare delivery system advanced claims of national origin and color discrimination against her former employer after a federal district court in Illinois denied the employer’s motion for summary judgment. The employee contended she was singled out for termination, without warning, for a timecard offense after suffering years of harassment, including offensive comments, based on the fact that she is of Mexican descent. She contended that it was only after she pointed out that she was being singled out that another employee was fired for committing the same offense. She also alleged that she was given a heavier workload and told “if she was Mexican, she could work a little harder when she needed things done quickly” (Morales v. Northshore University Healthsystem, February 2, 2022, Kennelly, M.).

Comments and comparisons. For four years the employee worked as a patient support associate for Northshore, for two years in one location and for two years in another. At both, she alleges, she experienced consistent harassment and bullying based on her Mexican heritage. She alleged that she was called “negra” and the department slave. She was compared to cleaning and kitchen staff and told she was “probably treated better in the kitchen than she was in the department.”

The employee also contended that her coworkers joked that she had driven her father’s pickup truck to work because she was there to pick up scrap metal. She alleged she was identified as the “Mexican who worked probably like a drug lord, who probably had a tunnel in the basement” and that she was compared to the drug lord El Chapo. She alleged that one surgical scheduler repeatedly harassed her to hurry up her work and “told [her] that if she was Mexican, she could work a little harder when she needed things done quickly.” In fact, she contended, she was given a workload that was heavier than that of white and non-Mexican patient support associates.

Fraud accusation and termination. In March 2018, the employee learned that she had been accused of timecard fraud for repeatedly parking her car in front of the building to swipe in to work before returning to park it in the parking lot. She was suspended. She told the employer that she was being unfairly “singled out” and that other employees had violated the same policy. In April she was fired. On the same day the employer fired one of her coworkers, also for timecard falsification. Prior to her termination, the employee filed a charge of discrimination with the Illinois Department of Human Rights. She later filed suit and both parties moved for summary judgment.

Discriminatory termination. After briefly considering and rejecting the arguments made by the employer regarding timeliness and failure to exhaust, the court considered whether the evidence would support a conclusion that the employee was subjected to national origin and color discrimination. It concluded that it would. While the employer argued that the employee failed to meet its legitimate expectations because she violated timekeeping policies, the employee maintained that the act of badging in to work before parking her car, which she admitted to doing, was not a violation of its legitimate expectations. Instead, she argued, that the employer selectively enforced its policies in a discriminatory manner, and she contended that other employees violated similar policies and were not fired. She also argued that the employer’s investigation into her supposed violations was deficient.

Similarly situated or treated better? A genuine dispute of fact exists, precluding summary judgment, on this point, the court concluded. The employee presented evidence that the employer did not fire other employee for similar policy violations—instead, there was evidence that other workers were given warnings and allowed to continue working. The employee, however, was fired without warning. Although the employer pointed to a white, European employee fired on the same day for the same violation, the employee disputes that the other worker was treated the same. She alleges that the other worker was fired only after the employee notified the employer that other workers had violated the same policy and claimed that she was being singled out. That fact, the court concluded, could persuade a reasonable jury that the employer treated similarly situated workers outside of the employee’s protected class better than her.

Moreover, there was evidence that several employees who committed similar violations were only given warnings and a genuine factual dispute existed on that point. There were several similarities between the employee and the other workers she referenced—they had the same job, the same supervisor, and violated similar policies, such as improper badging in, spending working hours on the internet, and parking in patient parking lots.

Hostile work environment. As for the employee’s hostile environment claims, the employer argued that the employee alleged only “off-color comments, isolated incidents, teasing, and other unpleasantries that are, unfortunately, not uncommon in the workplace.” However, the court concluded there were genuine disputes regarding whether the alleged harassment was sufficiently severe or pervasive and a reasonable jury could conclude it went “far beyond ‘unpleasantries’ that are ‘common in the workplace.’” It noted that she had described almost 60 instances of harassment over a four-year period, including multiple months in which there were more than four instances of harassment.

A reasonable jury could find this conduct would be offensive to a reasonable person in a way that altered employment conditions. Many of the incidents the employee described happened in front of others and reasonably would have caused considerable embarrassment. The employee contended that, while she was able to continue performing her job satisfactorily, she experienced depression, anxiety, and severe stress that led to two miscarriages.

Did she report it? The employer also argued that there was no basis for holding it liable for the conduct of the employee’s coworkers, contending that the employee never reported the alleged harassment. On this issue, the court noted, the parties presented competing evidence—the employee said she reported it, the employer said she did not and presented testimony of her former supervisors. Deciding between these competing accounts, the court explained, involves a credibility determination.

Finally, the question of whether the employee reported the harassment also created to a genuine dispute on her retaliation claim. She testified that she reported the harassment and discrimination in February 2018, only one month before she was suspended. The employer argued there was no causal link. The court explained that there was a genuine dispute regarding pretext. Moreover, the court rejected the employee’s motion for partial summary judgment regarding the employer’s alleged negligence in failing to prevent or correct this discrimination, harassment, and retaliation, also because of the genuine dispute about whether she reported the harassment.

The case is No. 20 C 2175.

Attorneys: Adeena Joele Weiss (Weiss Ortiz) for Rosy Morales. Marc R. Jacobs (Seyfarth Shaw) for North Shore University Health System.

Companies: North Shore University Health System

Cases: NationalOrigin RaceDiscrimination Discrimination Retaliation Discharge IllinoisNews GCNNews

Source:  vitallaw.com, “DISCRIMINATION—NATIONAL ORIGIN—N.D. Ill.: Discharge of white coworker, after employee complained of being ‘singled out,’ could support discrimination finding ” Brandi O. Brown, J.D., Feb 3, 2022