1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RODRIGO GARCIA, )

Plaintiff, ) 12-CV-4891

)

v. ) 

) Magistrate Judge Arlander Keys

COMPLETE BUILDING MAINTENANCE )

CO., and BILL ANDERSON, )

Defendants. )

)

)

Memorandum Opinion and Order

Currently before the Court is Defendants’ motion for 

summary judgment [Dkt #48]. Plaintiff, Rodrigo Garcia (“Mr. 

Garcia”), filed a five-count amended complaint against 

Defendants, Bill Anderson (“Mr. Anderson”) and Complete Building 

Maintenance Co. (“Complete”), alleging that Defendants subjected 

him to a racially hostile working environment; fired him because 

of his race or because he complained of race harassment; and 

fired him because he complained to law enforcement about another 

foreman’s criminal conduct. Defendants argue that the 

undisputed facts demonstrate that Mr. Garcia’s termination had 

nothing to do with race or retaliation; instead, they argue he 

was terminated on the basis of Complete’s financial situation 

and his lack of productivity as a foreman. For the reasons set

forth below, Defendants’ motion is granted. 
2

Procedural History

On July 13, 2012, Plaintiff filed his amended complaint 

against Defendants. [dkt #15]. Defendant Complete answered Mr. 

Garcia’s Complaint and pled affirmative defenses, including, but 

not limited to, failure to state a claim upon which relief can 

be granted and that Plaintiff’s employment was terminated for 

legitimate, non-discriminatory reasons. [dkt #16]. Defendant 

now moves this Court to enter an order granting summary judgment 

in its favor, arguing that Mr. Garcia cannot establish a genuine 

issue of material fact that a reasonable jury could resolve in 

his favor. (Defs.’ Reply at p. 1). The parties have consented 

to proceed before this Court pursuant to 28 U.S.C. § 636(c)(1).

[dkt #43].

Factual Background

The facts herein are drawn from the parties’ Local Rule 

56.1 submissions. [dkt #48, 55, 56, 61]. Each paragraph of the 

Local Rule 56.1 submissions must refer to the “affidavits, parts 

of the record, and other supporting materials” that substantiate 

the asserted facts. Local Rule 56.1(a)(3); F.T.C. v. Bay Area 

Business Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005). Most 

of the underlying facts of this case are agreed to and 

undisputed; it is noted when the parties disagree. 

Complete is a commercial roofing company that employs its 

construction personnel on a seasonal basis; employees generally 
3

apply for and receive unemployment during the winter months, and 

reapply for work at Complete in early spring. (Defendant’s Local 

Rule 56.1 Filing (“Def. St.”), ¶¶ 1-2). Mr. Garcia began his 

employment with Complete in 1989 as a laborer performing roofing 

work. (Id. at ¶ 13). Mr. Garcia is of Mexican national origin, 

or Hispanic. (Plaintiff’s Response to Defendant’s Local Rule 

56.1 Filing (“Pl. Resp”), ¶4). Mr. Garcia enjoyed the financial 

stability that the work provided, and the seasonal layoff 

allowed him to return to his native Mexico once a year to be 

with his wife and children for a few months. (Plaintiff’s Local 

Rule 56.1 Add'l Facts (“Pl. Add’l. St.”), ¶32). Eventually, Mr. 

Garcia’s wife and children immigrated to the United States, and 

his children – once they reached the age of eighteen – began 

working alongside him at Complete. (Pl. Add’l. St., ¶33). 

After his foreman at the time, Al Berlanga, was unable to 

return to work due to illness, Mr. Garcia was promoted to the 

position of foreman by Bob Gianatasio in 1996. (Def. St., ¶14). 

Bill Anderson recommended the promotion along with Bob Majka. 

Id. When Mr. Garcia worked for Complete as a foreman, he 

supervised a crew of approximately eight to ten workers. (Pl. 

Add’l. St., ¶32). Mr. Garcia’s personnel file reveals not a 

single instance of misconduct or discipline. (Id. at 33).
4

Mr. Garcia claims that Complete paid him less than 

similarly-situated non-Hispanic foremen. (Def. St., ¶9). Mr. 

Garcia admits, however, that he did not know whether the nonHispanic foremen who were paid a higher wage were paid so 

because of longer tenure or not. Id. The rates of pay and years 

of service for foremen at the time of Mr. Garcia’s termination 

were as follows:

Foreman Name Race Hourly Rate

(2008)

Hire Date Promotion Date

Tab Rand Caucasian $39.90 8/18/1976 1981

Marlin Thomas African-Amer. $35.00 4/26/1977 1985

Robin Mildebrath Caucasian $32.70 6/30/1980 1983

Francisco Herrera Hispanic $30.70 8/4/1980 1994

Eusebio Llanes Hispanic $22.70 2/17/1984 2000

Pedro Llanes Hispanic $28.30 5/11/1987 1994

Martin Alvear Hispanic $22.60 3/21/1989 2003

Rodrigo Garcia Hispanic $27.10 5/23/1989 1996

Id. 

In 2008, Complete claims that, due to the economic

recession and substantially reduced jobs and revenue, which

jeopardized Complete's ability to remain in operation, only

one crew received a bonus - Marlin Thomas' crew. (Def. St., 

¶12). Mr. Thomas (African-American) and his crew (Hispanic)

received a "bonus" because they traveled to and worked at an
5

out-of-state jobsite for an extended period of time. Id. Mr. 

Garcia acknowledged the economic recession of 2008, and admits 

that he did not know whether other foremen received a bonus

in 2008. Id. 

Also in 2008, Mr. Gianatasio decided, along with Paul 

Smith, the majority owner of Complete, that due to reduced work 

orders and substantially reduced revenue, in order to remain in 

business, Complete management needed to urgently and 

substantially reduce their salaries. (Id. at 16). The

reductions ranged from 80% (for Paul Smith); approximately 40% 

for Mr. Gianatasio, Mr. Anderson and Mr. Majka, to 50% for Russ 

Streeter and Richard Willix (Sales), 30% Paul Smith, Jr. 

(Service), and 12% for Thomas Sipolt (Estimator). Id. The pay 

decreases did not affect any of Complete’s hourly employees and 

did not affect any Hispanic or Mexican employees. Id. At 

around the same time that it was determined that Complete 

management needed to accept substantial reductions in pay, it 

was also decided that it was necessary to reduce the number of 

production crews from seven to six to ensure that the crews 

employed by Complete had enough work. (Id. at 17). 

Mr. Gianatasio made the decision that Mr. Garcia was the 

foreman who would not be rehired in the spring of 2009 because 

he determined that Mr. Garcia was the least productive foreman 

based upon his review of weekly foremen reports over the years 
6

and upon his review of multi-year summary reports of foremen 

productivity (“Foreman Productivity Reports”). (Def. St., ¶20)

It is noted, however, that Mr. Garcia denies that Mr. Gianatasio 

determined that he should be fired because he was the least 

productive foreman. (Pl. Resp., ¶20). Mr. Garcia contends that 

Mr. Gianatasio “repeatedly told the EEOC and IDHR that it 

terminated Garcia’s employment because (1) he did not accept 

constructive criticism from supervisors and (2) he was the least 

skilled foreman.” Id.

Mr. Garcia claims that, from at least the early 1990s 

through December 2008, Bill Anderson frequently called Mr. 

Garcia and other workers “wetbacks,” “beaners,” “stupid 

Mexicans,” “motherfuckers,” “pigs,” and “animals,” told workers 

that they had no brains, threatened to report workers to 

immigration authorities, said that he was a born racist, and 

made other racially offensive comments. (Pl. Add’l. St., ¶1). 

Moreover, Mr. Garcia argues that Mr. Anderson used this racially 

offensive language at least two times per week during the time 

that Mr. Garcia worked for Complete, and did not make these 

statements to non-Mexican foreman. Id. 

Complete disputes these facts, arguing that Mr. Garcia 

“offered numerous affidavits purporting to corroborate his 

extraordinary charges, but upon deposition of the affiants, the 

statements in the affidavits were found to be largely 
7

inconsistent. (Defendant’s Response to Plaintiff’s Local Rule 

56.1 Filing (“Def. Resp”), ¶1). 

Lastly, Mr. Garcia claims that Complete retaliated against 

him after he made complaints to management known about another 

foreman, Robin Mildebrath (white). Mr. Garcia states that Mr. 

Mildebrath was addicted to cocaine, and that from at least the 

early 2000s until the end of 2004, Mr. Mildebrath used racist 

language around workers, spoke to workers about sex, exposed his 

penis to workers, and touched workers on their butts. (Pl. 

Add’l. St., ¶3). Mr. Garcia reported Mr. Mildebrath’s 

misconduct to Complete management, but claims Complete took no 

corrective action thereafter. (Id. at ¶4). 

At the outset, Complete objects to any use of statements or 

acts regarding Mr. Mildebrath, or that occurred in his presence,

due to the Illinois Dead Man’s Act, 735 ILCS 5/8-201, which 

prevents the introduction of a deceased person’s statements at a 

civil trial. (Def.’s Add’l. St., ¶3). Moreover, Complete 

challenges the relevancy of these facts to the claims asserted 

in this matter. Id. Next, Complete denies each of Mr. Garcia’s

claims, including that it was aware of Mr. Mildebrath’s

addiction issues, that Mr. Mildebrath used inappropriate 

language or made inappropriate gestures, and that Complete took 

no corrective action on Mr. Garcia’s September 2008 complaints 
8

of Mr. Mildebrath. Id. Complete acknowledges that Mr. Garcia 

has filed sexual harassment charges in a complaint that is 

currently pending before the Illinois Human Rights Commission. 

Id.

On February 9, 2005, a DuPage County grand jury indicted 

Mr. Mildebrath for, among other things, Burglary and Attempted 

Aggravated Criminal Sexual Assault. (Pl. Add’l. St., ¶5). Mr. 

Mildebrath was incarcerated from early 2005 until August 2008, 

and upon his release, Mr. Mildebrath returned to work at 

Complete Building Maintenance, and Complete placed Mr. 

Mildebrath on Mr. Garcia’s work crew. (Id. at ¶7). Complete 

does not dispute these facts, however, it objects on the grounds 

of relevancy, and adds that Complete previously allowed a 

Hispanic employee to return to work following a prison term, as 

well. (Def.’s Add’l. St., ¶7). 

On September 7, 2008, Mr. Garcia claims that, the Parole 

Division placed Mr. Mildebrath on house arrest, and, in 

response, Complete removed Mr. Mildebrath from Mr. Garcia’s

crew. (Pl. Add’l. St., ¶13). Mr. Garcia argues that Complete 

suspected that he reported Mr. Mildebrath to the Parole 

Division, and that this attributed to Complete’s decision to 

fire him. Id. Complete asserts that the sole reason for Mr. 

Mildebrath’s house arrest was Plaintiff’s report to authorities, 
9

but denies that Mr. Mildebrath’s change in placement was in 

response to his house arrest. (Def.’s Add’l. St., ¶13). 

Standard of Review

Summary judgment is proper if the “pleadings, the discovery 

and disclosure materials on file, and any affidavits show that 

there is no genuine issue as to any material fact and that the 

movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(c)(2); see also Celotex Corp. v. Catrett, 477 U.S. 

317, 322 (1986). A genuine issue of material fact exists if the 

“evidence is such that a reasonable jury could return a verdict 

for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986). Though this standard places the initial 

burden on the moving party, once it has met this burden of 

production, the non-moving party “may not rely merely on 

allegations or denials in its own pleading,” but instead must 

“set out specific facts showing a genuine issue for trial.” 

Fed. R. Civ. P. 56(e). When deciding whether summary judgment 

is proper, the Court must accept the non-moving party’s evidence 

as true and draw all inferences in favor of that party, here the 

Plaintiff, Mr. Garcia. See Anderson, 477 U.S. at 255.

In order to successfully oppose a motion for summary 

judgment, the non-moving party must do more than raise a 

metaphysical doubt as to the material facts. Matsushita 

Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 
10

586. (1986). Rather, it must come forward with specific facts 

showing that there is a genuine issue for trial. Id. at 587. 

The non-moving party must offer more than a mere scintilla of 

evidence to survive summary judgment, and conclusory allegations 

are insufficient to defeat a motion for summary judgment. Keri 

v. Bd. of Trustees of Purdue Univ., 458 F. 3d 620, 628 (7th Cir. 

2006). “[T]he mere existence of some alleged factual dispute 

between the parties will not defeat an otherwise properly 

supported motion for summary judgment; the requirement is that 

there be no genuine issue of material fact.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 247–48 (1986). 

Analysis

Complete asserts that summary judgment in this case is 

proper because all of the material undisputed facts, pleadings, 

depositions, written discovery, and affidavits establish that

Mr. Garcia was not terminated on the basis of his national

origin or race, nor was Mr. Garcia racially harassed or

retaliated against for his complaints of sexual harassment.

Instead, Complete argues, the undisputed material facts

demonstrate that Mr. Garcia was terminated on the basis of

Complete's financial constraints and his lack of productivity. 

Mr. Garcia filed his amended complaint against Complete alleging 

the following five claims: (1) race harassment under 42 U.S.C.
11

1981 (Section 1981) (Count I); (2) race discrimination under 

Section 1981 (Count II); (3) retaliation for alleged complaints

of race discrimination under Section 1981 (Count III); (4) a

claim under the Illinois Whistleblower Act alleging 

retaliation for his complaints of alleged sexual harassment

(Count IV); and (5) Illinois common law retaliatory discharge

(Count V). Complete seeks summary judgment as to all counts

of Mr. Garcia’s amended complaint. The Court will analyze 

each count in turn.

I. Race Harassment Under Section 1981

Mr. Garcia argues that he has offered a remarkable amount 

of evidence to prove to a jury that he was racially harassed 

over a twenty-year timeframe. (Pl.’s Resp. at p. 19). He avers 

that, from “at least the early 1990s through December 2008, Bill 

Anderson frequently called Mr. Garcia and other workers 

“wetbacks,” “beaners,” “stupid Mexicans,” “motherfuckers,” 

“pigs,” and “animals,” told workers that they had no brains, 

threatened to report workers to immigration authorities, said 

that he was a born racist, and made other racially offensive 

comments.” (Pl.’s Resp. at p. 19). Additionally, Mr. Garcia has 

offered testimony of ten other current and former Complete 

employees who corroborate that Mr. Anderson frequently used 

racist language when addressing Mr. Garcia’s work crew. Id.
12

However, aside from making the claim, Mr. Garcia spends very 

little space arguing this count, seemingly relying on the claims 

in and of themselves, as well as the submitted affidavits from

his crew members, to belay the point. Complete argues that the 

affidavits Mr. Garcia provided consisted of family and friends, 

none of whom were terminated, but almost none of whom returned

to Complete after Mr. Garcia, their father/relative/friend, was

terminated. (Def.’s Reply at p. 18). Additionally, Complete 

argues that once deposed, “(at least until Plaintiff’s counsel

showed the witnesses the affidavits), the testimony varied and 

was substantially inconsistent from the affidavits. In fact,

Mr. Garcia's sons could not even decide in their depositions

whether they had been terminated or not.” Id.

The Court finds several undisputed facts to be 

inconsistent with Mr. Garcia’s claim of a hostile work

environment, including that: Plaintiff referred each of his

children, as soon as they turned 18 years old, as well 

as several friends, to work at Complete under the 

same supervisor and alongside the same employee (Mr. 

Mildebrath) whom he claimed subjected him to harassment

"sufficiently severe or pervasive to interfere with an

employee's ability to perform his assigned duties." (Def.’s 

Reply at p. 18). There is no dispute that Mr. Garcia never so 
13

much as mentioned the "severe" or "pervasive" harassment to

his children and friends. Id.

It is well settled that, in considering a harassment

claim, the offensiveness of the work environment is evaluated

from both the subjective standpoint of the plaintiff, as well 

as the objective standpoint of a reasonable person in the

plaintiff’s position. Faragher v. City of Boca Raton, 524 U.S.

775, 787, 118 S.Ct. 2275 (1998). The fact that Mr. Garcia 

would have recommended one child or one friend to work at

Complete while he was allegedly enduring such alleged

harassment would be, in and of itself, irreconcilable with

his establishment of a subjectively hostile work environment. 

As Defendants point out, t he fact that Plaintiff would

recommend all of his adult male children to work at Complete,

with the same people who allegedly subjected him to such 

egregious harassment, without even warning of the alleged

harassment, renders a decision in Mr. Garcia's favor on his

harassment claim difficult.

These facts, which are undisputed, preclude a reasonable

jury from finding in Mr. Garcia’s favor on his hostile work

environment claim. Accordingly, the Court finds summary 

judgment appropriate as to Count I. 
14

II. Race Discrimination Under Section 1981

Mr. Garcia argues that he has offered sufficient evidence 

for a jury to conclude that he was fired because of his race. 

Mr. Garcia proceeds pursuant to the indirect, burden-shifting

method of analysis in support of his race discrimination

claim. In order to establish a prima facie case under 

the indirect method, Mr. Garcia must show that (1) he was

a member of a protected class; (2) he was performing his job

satisfactorily; (3) he suffered an adverse employment action;

and (4) that Complete treated similarly situated individuals 

outside Mr. Garcia's protected class more favorably. See 

Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 394 (7th Cir. 

2010). If Mr. Garcia satisfies these elements, thus giving rise 

to an inference of discrimination, the burden would shift to

Complete to identify a legitimate, nondiscriminatory reason for 

the action taken. Stockwell v. City of Harvey, 597 F.3d 895, 

901 (7th Cir. 2010). If Complete can proffer a

nondiscriminatory reason for terminating Mr. Garcia, summary 

judgment would then only be erroneous if Mr. Garcia produced 

evidence that the proffered reason was a pretext for racial 

discrimination. Id. 
15

Complete contends that, regardless of whether Mr. Garcia

employs the direct or indirect method of analysis, a jury could

not reasonably find that a company who employed nearly all

Mexican employees and foremen terminated Mr. Garcia on account

of his race. Moreover, Complete argues that Mr. Garcia’s 

complaint never pled that he was terminated on account of race,

thus justifying dismissal on that ground alone. Although the 

complaint may have not been clear on the pleading, the Court

will analyze the merits. 

As to the first element of the four-part standard, Mr. 

Garcia is Mexican, and thus a member of a protected class. 

Second, Complete concedes that, although it considered him the

weakest of its foreman, “but for the recession, [Mr. Garcia’s]

employment was sufficiently satisfactory so that his employment

would not have been terminated.” (Defs.’ Reply at p. 13). 

Therefore, the Court finds that the second element, that he was 

performing his job satisfactorily, is met as well. There is 

no dispute that the third element is met, as Mr. Garcia 

suffered an adverse employment action by being terminated. The 

fourth element is wherein the dispute lies, whether Complete

treated similarly situated individuals who were not Mexican 

more favorably.
16

It is undisputed that, at the time of Mr. Garcia’s 

termination, there were seven working roof production foremen,

five of whom were Mexican. ( Defs.’ Reply at p. 14). 

Additionally, it is undisputed that all foremen hired since 1985

were Mexican, and that each of the non-Hispanic foremen was at

least 10 years more senior than Mr. Id. Lastly, it is also

undisputed that the foremen productivity reports reviewed by 

management all showed Mr. Garcia to be the least productive

foreman. Id. Mr. Garcia contends that the fourth element is 

met because Mr. Mildebrath was treated more favorably. 

However, at the time of Mr. Garcia’s termination, and insofar 

as Mr. Mildebrath’s return to Complete following his

release from prison, Mr. Mildebrath had not worked as a

foreman and had no crew. Therefore, the Court cannot agree 

that Mr. Mildebrath was similarly situated to Mr. Garcia. As

explained by the Seventh Circuit in Chattic v. Illinois Dep't

of Corrections, 2013 WL 6172517 (7th Cir. 2013), in

evaluating whether comparable coworkers are "similarly 

situated," courts will, "consider whether the employees held

the same position, were subject to and performed up to the

same standards, and reported to the same supervisor as the

plaintiff." Id. at *1. In Chattic, the Seventh Circuit, 

affirming summary judgment in favor of the employer, rejected

the plaintiff’s proffered comparables where the comparables
17

had fewer absences. Id. The court found that the plaintiff had 

also failed to present evidence of pretext where the employer

terminated the plaintiff on account of absenteeism, and where

the retained employees had fewer absences. Id. 

Herein, the sole comparable proffered by Mr. Garcia is an

individual who had been a foreman at Complete for over ten

years longer than he, and had most recently not had a crew 

for four years. The Court finds no relevance in Mr. Garcia’s 

argument regarding Mr. Mildebrath's absenteeism, which

occurred four years prior to the timeframe of Mr. Garcia's

termination. Lastly, the Court finds that Mr. Garcia has 

failed to present any evidence of pretext, and that the nondiscriminatory reason for Mr. Garcia’s termination -

productivity- was indeed the honest reason. See Smizer v.

Community Mennoite Early Learning Center, 538 Fed.Appx 

711 (7th Cir. 2013) ("Even if the Center's reason was not a

good one, that is irrelevant if the Center honestly believed 

that the plaintiff wrote the post [which represented the

stated reason for his termination]."). 

As a final argument to bolster Mr. Garcia’s race 

discrimination claim, he alleges that he and other Mexican 

foremen were paid substantially lower end-of-the-year bonuses 

than similarly situated non-Mexican foremen. (Pl.’s Resp. at 

p. 16). Mr. Garcia asserts that the bonus figures and the 
18

productivity data from 2005-2007 demonstrate that 

“historically, there was little change from year-to-year in 

terms of who received the highest bonuses. In almost every 

year, Marlin Thomas (black) and Francisco Herrera (Mexican), 

the two foremen with the best productivity figures, received 

the highest bonuses. Then, Tab Rand (white), one of the 

weakest foremen according to productivity figures, received a 

year-end bonus just shy of Thomas’s and Hernandez’s bonus and 

often twice as large as the bonuses of Mexican foreman Garcia, 

Alvear, P. Llanes, and E. Llanes.” (Id. at 17).

The Court finds it difficult to reconcile Mr. Garcia’s 

admission, that for several years, a Mexican foreman received 

one of the highest bonuses, with his allegation that Complete 

discriminates on the basis of bonus payments against 

Mexican/Hispanic foremen. Plaintiff provides a chart 

contrasting the bonuses foremen received from 2005-2007, with 

their respective productivity data, and argues that there is a 

“stark difference in year-end pay.” Id. However, Mr. 

Gianatasio’s testimony explained that bonuses were not based on 

productivity alone, but also considered other factors, such as 

skill and travel to distant worksites. (Defs.’ Reply at p. 

17). 

Although Mr. Garcia disputes that the bonuses were based 

upon productivity, skill and travel, per se, he concedes that 
19

they were based on more than just productivity, explaining that 

“[a]ctually, the end-of-year bonus was based on performance 

during the year...[p]erformance encompassed safety, productivity, 

quality of work, and the types of jobs that the foreman 

received.” Pl.’ Resp. to Defs.’ L.R. 56.1 SOF ¶10). The Court 

finds that, regardless of whether it follows Mr. Gianatasio or 

Mr. Garcia’s definition of what a bonus encompassed, there is

no evidence to support Mr. Garcia’s bonus disparity claim. 

Accordingly, the Court finds summary judgment appropriate as 

to Count II. 

III. Retaliation for Race discrimination Under Section 1981

In order to defeat Defendants’ motion for summary judgment 

on Count III, Mr. Garcia must offer evidence from which a jury

could reasonably conclude that Complete fired him because he 

complained about race harassment, or because he complained to 

law enforcement about Mr. Mildebrath’s criminal acts. Under the 

direct method, Mr. Garcia must show, through either direct or 

circumstantial evidence that (1) he engaged in statutorily 

protected activity; (2) he suffered an adverse action taken by 

Complete; and (3) there was a causal connection between the two. 

See Egan v. Freedom Bank, 659 F.3d 639, 642 (7th Cir. 2011). 

Complete does not dispute elements one or two, yet argues 

that, with regard to the third element, no reasonable jury could 
20

conclude that there was a causal connection between Mr. Garcia’s 

complaints of race harassment or criminal conduct and his 

termination. Indeed, the Court finds that Mr. Garcia leaves 

unaddressed several undisputed facts regarding Complete's 

employee demographics and his own work history, which could 

preclude a finding by a reasonable jury in Mr. Garcia's favor

regarding his retaliation claims, including:

-Mr. Garcia was promoted to the position of Foreman

after he had allegedly complained about Mr. 

Anderson and Mr. Mildebrath for at least six

years [Plaintiffs Amended Complaint, ¶6];

-Mr. Gianatasio, Complete's President, the person

to whom Mr. Garcia allegedly complained about Mr. 

Mildebrath prior to his promotion to foreman, 

approved Mr. Garcia's promotion from laborer to

foreman [Id. at ¶¶32,40];

-the vast majority of Complete's employees are

Mexican [Id. at ¶26];

-the last six production foremen hired by Complete

(since 1985) were Mexican [Id. at ¶15]; and 

-Mr. Garcia had been a foreman for 10 years less

than the only two non-Hispanic foremen working as

foreman at the time of his termination [Id. at ¶9];
21

Mr. Garcia then employs a circumstantial evidence

argument to proffer that, given Complete’s allegedly more 

favorable treatment of Mr. Mildebrath, a jury reasonably could 

conclude that Mr. Garcia was not fired for productivity-related 

reasons, “but because Complete was upset about Mr. Garcia’s 

complaints of race discrimination or his complaints to law 

enforcement. See Massey v. Johnson, 457 F.3d 711, 717 (7th 

Cir. 2006) (“Circumstantial proof, such as the timing of events 

or the disparate treatment of similar individuals, may be 

sufficient to establish the defendant’s retaliatory motive.”); 

Zitzka v. Vill. of Westmont, 743 F. Supp. 2d 887, 919 (N.D. 

Ill. 2010) (“Circumstantial evidence of retaliatory motive is 

more common, and may include the timing of events or the 

disparate treatment of similar individuals.”).” (Pl.’s Resp. at 

p. 9).

The Court is unpersuaded by Mr. Garcia’s circumstantial

evidence argument, and finds that Complete had a legitimate 

nondiscriminatory reason for Mr. Garcia’s termination. 

Complete maintains that, due to the economic downturn, it 

undertook drastic measures to reduce costs, which were 

necessary to avoid a financial crisis. (Def.’s Reply at p. 

4). Significantly, this is not a fact disputed by Mr. Garcia, 

which the Court finds telling. Mr. Gianatasio made the 

decision to terminate Mr. Garcia, "because of the economic 
22

condition that the company was in." Id. And Mr. Gianatasio

testified that he, "wish[ed] Rodrigo [Mr. Garcia] was still

working at Complete" because that would be an indication that

the company was healthier. Id. This is also not contested by

Mr. Garcia.

The Court finds that, but for the downturn in the economy,

Mr. Gianatasio made clear that Mr. Garcia would not have been

terminated. The evidence of the poor economy and need to

reduce one crew is not disputed. In addition to salary cuts, 

Complete also made the decision to eliminate one full crew,

by terminating one foreman. Id. Furthermore, Mr. Gianatasio

testified, and Mr. Garcia does not dispute, that he selected

Mr. Garcia for termination based upon the foreman

productivity data and because his efficiency numbers, or

overruns, were the worst. Id. The Court finds that such 

undisputed facts dictate judgment in favor of Complete on

Mr. Garcia’s retaliation claims. Accordingly, the Court 

finds summary judgment appropriate as to Count III.

IV. Illinois Claim of Retaliation for Complaints of Sexual 

Harassment and Illinois Common Law Retaliatory Discharge

Mr. Garcia has a retaliation claim currently pending, and 

stayed, before the Illinois Human Rights Commission under the

Illinois Human Rights Act ("IHRA") with nearly identical facts
23

to those alleged by him in support of Illinois Common Law

and Illinois Whistleblower Act ("IWA") claims. Complete argues 

that Counts IV and V of Mr. Garcia's a mended complaint,

retaliation under the Illinois Whistleblower Act, are

abrogated/preempted by the IHRA, which provides the sole remedy

for any claim that is "inextricably linked" to an alleged

violation of an employee's civil rights under the IHRA. Giese

v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 516 (1994). 

In Counts IV and V of his amended complaint, Mr. Garcia 

alleges that Complete terminated him in retaliation for his

alleged reporting of Mr. Mildebrath’s harassment to the Lisle

Police Department. The Court agrees that Counts IV and V of 

Mr. Garcia's complaint are based upon claims of retaliation 

which are inextricably linked to duties created by the IHRA, 

and are therefore preempted. Mr. Garcia attempts to refute the 

preemption argument, relying upon Mendez v. Perla Dental, 646

F. 3d 420 (7th Cir. 2011). In Mendez, the plaintiff complained

to the police about an incident when she was pushed to the floor

and injured her back. The employer agreed that, "at the time

the complaint was filed, the district court had subject matter

jurisdiction over the Illinois retaliatory discharge claim

because the claim had an independent basis." (emphasis added)

Id. 
24

In the instant case, the Court finds that the facts

alleged to support the IWA claim are materially identical to

those alleged in support of the IHRA claim, including Mr. 

Garcia’s allegation that he was terminated on account of his

complaints to the police regarding Mr. Mildebrath's sexual 

harassment. Mr. Garcia’s common law retaliatory discharge and

IWA claim are "inextricably intertwined" with his claim

currently pending before the IHRC and thus must be dismissed as

preempted under the IHRA. Accordingly, the Court finds summary 

judgment appropriate as to Counts IV and V.

Because Mr. Garcia’s amended complaint fails on each 

count, Complete is entitled to summary judgment.

Conclusion

Defendant Complete’s motion for summary judgment [dkt #48]

is granted.

Date: February 14, 2014 E N T E R E D:

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MAGISTRATE JUDGE ARLANDER KEYS

UNITED STATES DISTRICT COURT