Henning filed an EEOC charge, claiming that Defendants suspended her in retaliation for
her complaints to the IDHR. The EEOC issued a right to sue letter to Henning on November 30,

2001. This suit followed.

II. Discussion

A Summary Judgment Standard

Summary judgment is appropriate only if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of Jaw." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). When the Court rules on a motion for summary judgment, it must view all evidence, and
draw all reasonable inferences in the light most favorable to the non-moving party. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). When the non-moving party bears the burden
of proof on an issue, however, she may not simply rest on the pleadings, but instead must
affirmatively set forth specific facts establishing the existence of a genuine issue of material fact.
Celotex, 477 U.S. at 322-26. Summary judgment must be granted "against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at trial." /d. at 322. "Where the record
taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
‘genuine issue for trial,"" and summary judgment must be granted. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).


Copies have been mailed to:

J. TOBIAS DIXON, Esq.
123 West Madison

Suite 900

Chicago, IL 60602

Attorney for Plaintiff

DAVID T. NANI, Esq.
Kralovec & Marquard, Chtd.
55 West Monroe Street
Suite 1000

Chicago, IL 60603

Attorney for Defendants


Defendants do not dispute that Henning will be able to present her prima facie case.
Taking our cue from Defendants, we will assume that she will be able to prove the first four
elements of this method, and assume that Kiehn knew of her complaints to the IDHR, and only
consider the question of whether Defendants have presented an unrebutted noninvidious reason
for excluding Henning. We find that they have presented such a reason.

Under the Illinois Horse Racing Act, Maywood Park Race Track can exclude any person:

whose conduct or reputation is such that his presence on those facilities may . . .

call into question the honesty and integrity of horse racing or wagering or interfere

with the orderly conduct of horse racing or wagering, provided, however, that no

person shall be excluded or ejected from the facilities of any licensee solely on the

grounds of race, color, creed, national origin, ancestry, or sex. The power to eject

or exclude an occupation licensee or other individual may be exercised for just

cause by the [facility.]

230 ILCS 5/9(e). Thus, Kiehn, the general manager, had the power under Illinois law to exclude
any person from the track,‘ as long as he had just cause to suspect that the person might interfere
with the orderly business of the track. Kiehn did not have to have reasonable or good cause to
exclude Henning; rather, he merely had to have "just cause." See Phillips v. Graham, 427 N.E.2d
550, 554 (Ill. 1981).

Henning has failed present evidence to rebut Defendants’ assertion that she was excluded
for just cause from the track. Kiehn received a report from the track's security officers that

William Webster had reported that Henning had made a comment relating to terrorists and filling

a plane with white people and crashing it into a building. Henning does not dispute that she

* It seems irrelevant to our analysis to determine whether Henning was present as a
patron (as Defendants claim) or as an employee (as she claims) and Henning has not provided us
with any reason to make this determination. Henning is not an occupation licensee, (see 230
ILCS 5/3.09), and even if she were, she could still be excluded from the track for just cause. As
a patron, she falls in the "any other individual" category, and can also be excluded for just cause.

-6-


B. Retaliation

Under Title VI, it is "an unlawful employment practice for an employer to discriminate
against any of his employees . . . because he has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C.

§ 2000e-3(a). There are two methods for a plaintiff to defeat summary judgment when alleging
retaliation — the direct evidence approach or the McDonnell Douglas burden-shifting method as
applied to the retaliation context. Stone v. Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th
Cir. 2002). Henning does not meet the requirements of the former method as she does not
present any evidence that would establish retaliation without resort to inferences from
circumstantial evidence. See id. (noting that "mere temporal proximity between the filing of the
charge of discrimination and the action alleged to have been taken in retaliation for that filing
will rarely be sufficient in and of itself to create a triable issue").

Henning has also failed to establish that a material issue of fact prevents this Court from
granting summary judgment in Defendants' favor under the burden-shifting method. To establish
a prima facie case of retaliation under the burden-shifting approach, Henning must show that: (1)
she engaged in a statutorily protected activity; (2) she met her employer's expectations; (3) she
suffered an adverse employment action; and (4) she was treated less favorably than any other
similarly situated employee who did not engage in such protected activity. See Stone, 281 F.3d at
644. Even if Henning could prove all these elements, Defendants are still entitled to summary
judgment if they have presented unrebutted evidence of a noninvidious reason for the adverse

action. See id.


her comments about her supervisor interfered with the orderly business of the track then this
could have been just cause for excluding her from the premises.

Henning has presented no material issue of fact for trial. Defendants have presented a
noninvidious reason for excluding her from the track and Henning has failed to rebut this

evidence. Defendants' motion for summary judgment should be granted.

III. Conclusion
For the above reasons, we find that Defendants are entitled to summary judgment.
Plaintiff presented no evidence sufficient to create a material issue of fact. Accordingly, this
Court grants summary judgment for Defendants Maywood Park Trotting Association, Inc.,
Associates Racing Association, Inc., and Horseman's Guarantee Corporation of America.

ENTER ORDER:

ah C Celli

MARTIN C. ASHMAN
Dated: January 12, 2004. United States Magistrate Judge


‘Minute Order Form (06/97)
7.

United States District Court, Northern District of Illinois

f . ath 7
wir Mugla Jude Martin C. Ashman han Aasgued Judge
CASE NUMBER 02 C 1481 DATE 1/12/2004
CASE Helen E. Henning vs. Maywood Park Trotting Assoc., Inc., et al.
TITLE

of the motion being presented.]

{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION:
DOCKET ENTRY:

qa) Oo Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

@) oO Answer brief to motion due___. Reply to answer briefdue__.

(4) im Ruling/Hearingon___setfor____at

(5) Oo Status hearing[held/continued to} [set for/re-set for]on__setfor__—__at

(S)] o Pretrial conference[held/continued to] [set for/re-set for]on__setfor__——sat__—
(0) Oo Trial{set for/re-set for]on__at

(8) oO [Bench/Jury trial] [Hearing] held/continuedto___—_at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CIFRCP4(m) (OlLocal Rule 41.1 OO FRCP41(a\(1) OO FRCP41(a)(2).

America’s motion for summary judgment [28-1] is granted.

ail) @ [For further detail see order attached to the original minute order.]

qo [Other docket entry] Enter memorandum opinion and order. Defendants Maywood Park Trotting
Association, Inc., Associates Racing Association, Inc., and Horseman’s Guarantee Corporation of

No notices required, advised in open court.
2

No notices required. of

a | Notices maited by judge’s staff.
Notified counsel by telephone.
Docketing to mail notices.

av | Mail AO 450 form.

JAN 12 2004

1YNOI LoiwLsia “sn
waa

Copy to judge/magistrate judge,

is couroom €2:iHd CL NYE te
initials

OT Bia Gehl hee



made this comment. Webster signed a statement the same day the comment was made relating
the substance of their conversation. Henning has provided no evidence that Kiehn did not act on
the basis of her comments but rather acted to retaliate against her for filing a complaint with the
IDHR. Kiehn is responsible for the orderly conduct of the horse racing at the track. He was
concemed that comments about terrorists and filling a plane with white people would cause
disruption and disorder at the track. His duty was to minimize this potential and exclude
Henning until the matter could be investigated.

Even if Henning disputed that she made the comment about filling a plane with white
people and crashing it into a building, she does not contradict the fact that Webster reported that
she had made the comment. Her main argument seems to be that Webster was an acquaintance
of Henning's supervisor, and acted in concert with her.* Again, the unrebutted evidence shows
that Kiehn acted to investigate a problem that was reported to him, regardless of whether
Henning actually made the statement or whether Webster had an ulterior motive for making the
report.

Furthermore, although Henning does not make this argument, the Court notes that the
incident report written by a security officer at the track labeled the incident "Defamation of a
Supervisor's Character." This might indicate that Henning was excluded for comments she made
on that same day and to Webster about her supervisor, rather than the terrorist comments.* Even
if she were excluded for this reason, however, her remarks about her supervisor the same day she

was excluded could not be the basis for a retaliation claim as it is not a protected activity. But, if

5 Henning does not provide any evidence to support this argument.
® The report discusses the terrorist comments at length.

-7-


On October 17, 2001, Henning was present at the Maywood Park Race Track. That
night, a patron named William Webster complained to the track's security that Henning had told
him that she hated "Whites" and that she wished that terrorists would hi-jack a plane and kill
more white people. The security officer reported the situation to General Manager Ken Kiehn.
Kiehn was concemed that the remarks would scare other patrons at the track because the remarks
came so soon after the terrorists attacks of September 11th. Kiehn was also concerned that
Henning might somehow be involved in some sort of plan to attack a crowd. Kiehn decided that
he should exclude Henning from Maywood Park until he was able to investigate the matter
further.

Henning appeared in Kiehn's offices and was told that she must leave the premises and
would not be allowed to work at Maywood Park until an investigation into the matter had been
completed, Henning claims that her name was announced over the loudspeaker "as though she
was a terrorist" and that Kiehn told her that she was suspended until further notice. (Am. Compl.
993, 4.) Kiehn claims that Henning was excluded, pursuant to state law, from the track. She
was not "suspended" from work because she was still allowed to participate in the Horsemen's
Guarantee Corporation of America's employee pool and work as a pari-mutuel clerk for other
racing associations in the Chicago area.

Kiehn completed his investigation over the next three to four weeks. At the end of his
investigation, he concluded that Henning was no longer a threat to the orderly conduct of racing
at the track, and he withdrew her exclusion from the track. Kiehn called Henning to his office
and, according to Henning, told her that “they would pay her for four (4) days and she had been

suspended for a month... ." (Am. Compl. ¥ 7.)

-3-


for summary judgment must file a separate statement of uncontested material facts setting forth
the facts that entitle the party to judgment as a matter of law. This statement is not optional, and
a failure to file such a statement may result in the Court denying the motion. Local R. 56.1(a).
The party opposing the motion for summary judgment is required to file a response to the
statement of uncontested facts as well as any opposing affidavits. Local R. 56.1(b). Defendants
failed to file a statement of material uncontested facts, and only filed one affidavit in support of
their motion. Plaintiff could not have filed a response to a non-existent fact statement, but
should have brought Defendants’ remissness to the attention of the Court. Additionally, Plaintiff
has failed to file any affidavits or other supporting evidence to oppose the motion. Both parties
have failed to follow this very clear Local Rule.? Nevertheless, rather than denying the motion
for summary judgment, the Court has decided to consider it since the decision appears to be
clear. The facts as set forth below have been gleaned from the Plaintiff's complaint and any
additions and amendments to the complaint as well as Defendants’ unopposed affidavit in support
of their motion.

Henning is currently a pari-mutuel clerk at the Maywood Park Race Track. She has been
employed at the track for over seventeen years. In May 2001, Henning filed a charge of sex and
race discrimination against Defendants with the Illinois Department of Human Rights. The

IDHR dismissed these charges on August 28, 2001.

? Additionally, both parties have filed extraneous briefs (beyond the normal response and
teply) without leave of Court.

3 Although Henning works at the Maywood Park Race Track, her actual employers for
purpose of this suit are Defendants.

-2-


IN THE UNITED STATES DISTRICT COURT pou
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION JAG a7

wo boa4
HELEN E. HENNING, )
)
Plaintiff, ) Case No. 02 C 1481
)
v. ) Magistrate Judge
) Martin C. Ashman
MAYWOOD PARK TROTTING )
ASSOC., INC., ASSOCIATES RACING )
ASSOCIATION, INC., HORSEMAN'S )
GUARANTEE CORP., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Helen Henning filed a one-count employment discrimination complaint against
Defendants Maywood Park Trotting Association, Inc., Associates Racing Association, Inc., and
Horseman's Guarantee Corporation of America (collectively "Defendants"), alleging retaliation
under the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) (Title VI). Defendants have moved for
summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.’ For the

following reasons, Defendants’ motion is granted.

I. Bae und
Before turning to the facts of this case, we find it necessary to discuss the collective

failure of all parties to follow the Local Rules. Pursuant to Local Rule 56.1(a)(3), a party moving

' The parties have consented to have this Court conduct any and all proceedings in this
case, including the entry of final judgment. See 28 U.S.C. § 636(c); Local R. 73.1(b). u |