DISCUSSION

1. Standard of Review

Summary judgment is appropriate when the moving papers and affidavits show there is no

genuine issue Of matcrial fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(c); Celdtex Corp, v. Catrett, 477 U.S, 317, 322 (1986), Once a moving party has met its

burden, the ndn-moving party must go beyond the pleadings and set forth specific facts showing

thore is a gemuine issue for trial. Fed. R. Civ. P. 56(c); Silk v. City of Chicago, 194 F.3d 788, 798

(7" Cir. 1999), A genuine issue of material fact exists when “the evidence is such that a reasonable

jury could ret

248 (1986).

ma verdict for the nonmoving party.” Anderson v, Liberty Lobby, Inc., 477 U.S. 242,

The summary judgment standard is applied with special scrutiny to employment

disorimination cases because the outcome may depend on determinations of credibility and intent.

Michas v. Health Cost Controls of [inois, 209 F.3d 687, 692 (7" Cir. 2000).

IL. Plaintiffs’ Age Discrimination Claims

The

IDEA makes it “unlawful for an employer . . . to fail or refuse to hire or to discharge

any individual or otherwise discriminate against any individual with respect to his compensation,

terms conditibns, or privileges of employment, because of such individual’s age.” 29 U.S.C. §

623(a)(L). Plaintiffs may prove age discrimination through cither direct or indirect evidence. Robin

y. ESPO Engineering Corp., 200 F.3d 1081, 1088 (7th Cir. 2000). Under either approach, plaintiffs

must show they suffered a materially adverse employment action. Haugerud v. Amery School

District, 259

‘3d 678, 691 (7th Cir. 2001).

Plaintiffs claim they were subject to a hostile work cnvironment severe and pervasive enough

to constitute

employment

to an adverse employment action.’ Harassment can rise to the level of an adverse

hction if it is severe cnough to cause a significant change in the plaintifI’s employment

In theif response, plaintiffs base their age discrimination claims entirely on a hostile work environment theory.

‘Lo the extent plaintiffs’ discrimination charges and complaintinclude claims based on disparate treatment, these
claims|are deemed abandoned. See Palmer v, Marion County, 327 F.3d 588, 597-98 (7th Cir, 2003 (claims

not pr

sented to the district court in response to summary judgment are deemed abandoned).

4



Shortly hiter Grob’s hire in September 2001, Velisaropoulos claims Grob told him, “T thought

you were much/jolder than that.” Jd. at ]17. In early 2002, Velisatopoulos met with Grob to discuss

scheduling anc
schedule than.

Velisaropoulo:

d Grob said, “don’t you think because you are old you are going to have a better
the other people.” Jd. at 418. Before a server meeting in early 2002, Grob told

3, “if you old guys are unable to do the assignment, you can go to the [on-call] list.”

fd. at {20. Sometime in 2002, Frid told Velisaropoulos, “the truth is the old and senior people, they

cannot adjust to the new system we are trying to enforce.” /d. at §21. According to Velisaropoulos,

Grob told him during a meeting, “I don’t want no more old people in my meeting.” Je. at J 22.

In approximately January or February 2002, Grob told Giannos, “if you're too old to do the

job, go to the [pn-call] list.” / at 725. On another occasion, Giannos claims thai Grob told him,

“if you are old] stay home,” and “if you are old, why don’t you quit.” Def. Facts at 969. According

lo Giannos, Z
occasion, Gro
young people.

Huma

toff told him that the Fairmont wanted “new blood.” Pl. Facts at | 27, On one
told Soto, “don’t think because you are old, youare going to get better treatment than

, Id, at 30.

resources director Sean Rillings (“Billings”) met with Underwood “many, many

times” regarding his scheduling complaints, /d. at [42. Despite these meetings, Underwood never

complained ta Billings about any age-related comments. Underwood Dep. at p. 171, Underwood

was aware of
Velisa
discipline. Gi

approximatel:

he Fajrmont’s harassment policy, but did not file an internal complaint.
ropoulos complained to Billings approximately twenty times regarding scheduling and
annos similarly discussed his concerns regarding scheduling and pay with Billings on

y four to five occasions. Billings also discussed scheduling with Soto. In late February

and early March 2002, plaintiffs filed discrimination charges with the Equal Employment

Opportunity Commission, alleging age discrimination based on disparate treatment and age-related

comments,



re

status. Stutler ly. Ulinois Dept. of Corrections, 263 I'.3d 698, 703 (7th Cir. 2001). Whether

harassment is sufficiently severe or pervasive depends on the totality of the circumstances, including

“the frequency bf the discriminatory conduct; its severity; whether it is physically threatening or

humiliating,

on a mere offensive utierance; and whether it unreasonably interfercs with an

employee’s wotk performance.” Harris v. Forklifi Systems, Inc., 510 U.S. 17, 23 (1993), The work

environment cannot be described as hostile unless a reasonable person would find it offensive and

plaintiffs actually perceived it as hostile. Daniels v. Essex Group, Inc., 937 F.2d 1264, 1271 (7th

Cir, 1993),

The regord does not support a reasonable inference that plaintiffs perceived their work

environment as hostile. Although plaintilfs’ entire harassment claim is based on age-related

comments, plaintiffs have not alleged their work cnvironment was negatively affected by the

comments. Indeed, the record does not reveal whether the comments bothered plaintiffs at all. In

contrast, it is indisputed that plaintiffs did not complain about the comments to anyone al the

Fairmont priof to filing their discrimination charges.” Despite numerous mectings with Billings

about scheduling complaints, not one of the plaintiffs told him about the comments. Based on this

record, a reasqnable jury could not conclude that plaintiffs perceived their work environment to be

hostile based on the comments.

Nor could a reasonable jury conclude that plaintiffs’ work environment was objectively

hostile. Whether plaintiffs’ work environment objectively could be construed as hostile “should be

judged from

e perspective of a reasonable person in [plaintiffs’] position, considering “all the

ciccumstances.’” Oncale v, Sundowner Offshore Services, Inc.,523 U.S.75, 81 (1998). A workplace

2 The Fairmont asserts plaintiffs’ failure to utilize the complaint procedure in its workplace harassment policy
bars their claims under the Ellerth affirmative detense, See Burlington Industries, Inc. vy. Ellerth, 524 U8. 742
(1998){An employer is not vicariously liable for the actionable harassment of an employce if the employer

to take|advantage of available preventative or corrective opportunities). However, the Fairmont waived this
atlirmative defense by failing to plead it in its answer. Bank Leumi Le-lyrael, B.M. v. Lee, 928 F.3d 232, 235

sas reasonable care to prevent or correct any harassing behavior and the employee unreasonably failed

(7th Cir. 1991)


Minuse Order Fon (36077)

Jar

a

Inited States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other

Suzanne B. Conlo:
we B nm than Assigned Judge

CASE NUMBER 02 C9179 DATE 2/2003
CASE WALTER UNDERWOOD, ct al. vs. TIE FAIRMONT HOTEL
TITLE
[ln the following box (a) indicate the party Gling the motion, e.g., plaintiff, defendant, 3rd party plaintit, und (h) state briefly the nature
MOTION: of the motion being presented.)

DOCKET ENTRY:

qd) o Filed motion of | use listing in “Motion” box above.]
(2) Oo Brief in support of motion due.
(3) im} Answef brief to motion due___. Reply to answer brief due___-
(4) Oo Ruling{Hearing on set for _at .
(5) o Status hearing[held/continucd to] [set for/re-set for}on set for, at
(6) im Pretrial conference[held/continued to] [set for/re-set for) on _,.setfor_ at
(7) 0 Trial[stt for/re-set for] on _ at.
(8) im {Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFR¢P4(m) =O Loca! Rule 4).1. OFRCP41(a)(1) O FRCP41(a)(2).
do) [Other| docket entry] Defendant’s motion for summary judgment [12-1 | is granted. ENTER
MEMORANDUM OPINION AND ORDER.
(il) ff [For further detail see order attached to the original minute order. |
No notices required, advised in open court, ‘Docurniht
i
No notices required, surbr ot netin Nutiber
wv | Notices mailed by judge's staft. sep 0 3 203
Notified counsel by tglephune. ute docked
Pocketing to muil notices,
Mail AQ 430 form. 1uNod Lald1Sia Ss‘ : “on
yyy ocleine Rept ii
Copy to judge/magiskare judge
ose sarees
Hesalhd 2- d38 £0 ett
courtroom, .
“ ras PR SORE IE bw

Datertidns sbkived in

central Clerk's Office snaihing deputy initials



must be “hellish” before it is actionable as a hostile environment. Logan v, Kautex Textron North
America, 259 F.3d 635, 641 (7th Cir, 2001).

Plaintiffs’ work environment was far from “hellish.” According to plaintiffs, they each were
subjected to between one and seven age-rclated comments over approximately six or seven months.
See Baskervilld v. Culligan Int'l Co., 50 F.3d 428, 430-31 (7th Cir. 1995)(“handful of comments
spread over manths” are not sufficiently pervasive to constitute harassment). The comments were
not so objectively offensive as to alter plaintilfs’ conditions of employment. See Silk, 176 F.3d at
398 (“relatively isolated instances of non-severe misconduct will not support a claim ofhostile work
environment”), Based on the totalily of circumstances, a reasonable jury could not conclude the

comments endured by plaintiffs constituted an actionable hostile work environment. Thercfore,

plaintiffs’ age discrimination claims fail as a matter of law.
CONCLUSION

The Fairmont is entitled to judgment as a matter of law on all claims advanced by plaintifis.

September 2, 7003 ENTER:

2B, Color
. ue B. Conlon ~~

United States District Judge



EASTERN DIVISION
WALTER UNDERWOOD, NICK. )
VELISAROPQULOS, NICK GIANNOS, )
DOMINGO SOTO, SAVVAS BETONDO ) No. 0209179
and ANICETQ RECENDIZ, )
) Suzanne B. Conlon, Judge r\
Plaintiffs, )
ww 3
v.
) gf ©
THE FAIRMONT HOTEL, )
)
Defendant. )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

MEMORANDUM OPINION AND ORDER

Walter\Underwood (“Underwood”), Nick Velisaropoulos (“Velisaropoulos”), Nick Giannos

(“Giannos”),

(“Recendiz”)

Domingo Soto (“Soto”), Savvas Betondo (“Betondo”) and Aniceto Recendiz.

(collectively, “plaintiffs”) sue The Fairmont Hotel (“the Fairmont”) for age

discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §

621 ef seg. Bi

‘ondo and Recendiz previously dismissed their claims with prejudice. ‘The lairmont

moves for suntmary judgment on the remaining plaintiffs’ claims pursuant to Fed. R. Civ. P, 56.

1. Local

Local

BACKGROUND
Rule 56.1

ule 56.1 requires both the moving and non-moving parties to submit a staternent of

material facts, including "specific references to the affidavits, parts of the record, and other

supporting mi

aicrials relied upon.” Local Rule 56.1(a)(3); Local Rule 56.1(b)(3)(B). Evidence

submitted at summary judgment must be admissible at trial under the Federal Rules of Evidence.

Woods v, City

record evident

lof Chicago, 234 F.3d 979, 988 (7th Cir.2000), All facts not properly supported by the
te must be disregarded. Brasic v. Heinemann's Ine. , 121 F.3d. 281,284 (7th Cir.1997).

Paragraphs 3, 10 and 31 of plaintiffs’ statement of facts are premised on inadmissible

hearsay. Ineai

ch paragraph, plaintiffs relay purported statements of other employees about purported

1



statements of (Heir supervisor. Inadmissible hearsay cannot be considered on summary judgment.

Eisenstadt v. Gentel Corp., 113 F.3d 738, 741 (7th Cir.1997), ‘Therefore, these facts must be

disregarded.
IL. Facts
The fol

old, currently

lowing facts are undisputed unless otherwise noted. Plaintiffs, who are over 40 years

ork at the Fairmont as full-time banquet servers. ‘The Fairmont supplements its [ull-

time staff by s¢heduling on-call servers when necessary. As banquct servers, plaintifls sct up for

banquet functi

ns, serve guests, maintain the banquet area and clean up after a function. Since

September 2001, plainti!fs have becn supervised by the director of banquct operations, Tim Grob

(“Grob”).

In January or February 2002, Underwood asked Grob why he was scheduling the full-time

servers to perform set up and clean up duties. Grob told Underwood, “if you are too old or

physically unal
worker.” Pl. F
scheduling of §
can look for

you're too old)

ble to do the job, you could look for work somewhere else or become a part-time
lacts at (4. In March or April 2002, Underwood approached Grob again about the
et up and clean up duties, Grob told Underwood, “If you're too old to do the job, you
ork somewhere else.” Jd at 95, On another occasion, Grob told Underwood, “If

to keep up, you'll need to take some vacation lime.” Jd. at 6. Around the same

time, banquet manager William Walker (“Walker”) told Underwood, “you old guys, if you can’t

keep up, you y

eed to look for work somewhere else, This job is for younger people.” Jd. at | 7.

In 2002, Fairmont gencral manager Kevin Frid (“Frid”) told Underwood that “scnior people

have trouble adjusting to change.” /e. at 711. Ata wedding ceremony, Walker told Underwood,

“T hear you complaining, but 1 don’t sce anybody quitting yet.” Jd. at | 8. In response to

Underwood’s

nquiry regarding the music played by the Fairmont, food and beverage director Andre

Zotoff (“Zotoff") told Underwood that “the Hotel was trying to project a younger image.” Jd. al

12