As before, Plaintiff's own testimony is instructive. Plaintiff, for example,

testified that Luis was trying to “‘get his goat,’” and that “‘Thcy all were. It was all a big
—all a big joke.’” (D.E. 22 | 77 (quoting Plaintiff Dep. al 74); see also id. 4 54 (Plaintiff
“did not think that Antonio literally wanted to have sexual intercourse with him, but that
he was engaging in such actions to ‘get my [i.¢., Plaintiff's] goat.””) (quoting Plaintiff's
Dep. at 73),) Similarly, Plaintiff testified that Antonio made certain lewd comments to
“see what he was made of” (id. | 47 (quoting Plaintiff's Dep, at 78)), and that, when
Plaintiff started at the pizzeria, “Antonio made it ‘very clear that he was there and he
would be there after me.”” (/d. 4 43 (quoting Plaintiff Dep. at 67); see also id. 4 64
(reflecting that Luis was upset that Plaintiff was hired into a managerial position instead
of Luis, who already was working at the pizzeria).) Plaintiff also stated, at least in one

conversation to the pizzeria owner, that this sort of inappropriate behavior was ‘‘no big
deal because it’s common in kitchens’” (id. § 52 (quoting LuBecky Dep. at 86-
87))—although Plaintiff also suggested that the degree of vulgar conduct was higher than
usual (id. 49). As explained, Plaintiff expressly testified Luis’s aclions were an
attempt to “‘get his goat” and that it “‘was all a big — all a big joke’” (id. 177 (quoting
Plaintiff Dep. at 74)), and while Plaintiff suggested that he was uncertain whether Juan
was homosexual, it is uncontroverted that Luis would pinch and grab female employees
on the buttocks, that other employees did not perceive Luis as a homosexual, and that

T.uis openly talked with other employees “about girls” and asked onc of the female

waitresses out on a date. (d. {|| 70, 72, 74-75, 77.)

" The behavior in the cooking area at the pizzeria generally appears to have ranged from juvenile
to asinine—with workers yelling at each other, placing or throwing food at or on cach other, and,
as discussed above, with substantial male-on-female and malc-on-male lewd behavior (e.g., the
pinching and “dry humping”) and other obscene discourse. (See D.E. 22 4 38, 40, and other
paragraphs cited extensively above.)

20


the alleged statements and actions of these two men were vulgar and deplorable, and the

statements and actions had sexual content. For example, Mr. Armintrout testified that on
the first day of his employment, and every day thereafter, Antonio asked Mr. Armintrout
“how many times he had masturbated the night before, if he ‘ate out’ his wife

and stepdaughters, and . . . i he could ‘fuck’ Plaintiff's stepdaughters.” (/d. 146.)
Plaintiff alleges that Luis and Antonio also often told him thal “they wanted to have scx
with” him. (D.E. 23 14.) Plaintiff also experienced Antonio and Luis “physically ‘dry-
hump,’ pinch, fondle and inappropriately touch both male and female employees,”
including Plaintiff himself. (D.E. 22 937; see also id. 53 (Plaintiff testifying that
Antonio would approach him “from behind, fully clothed,” and then simulate “dry
humping” Plaintiff, which was the imitation of “the act of anal intercourse.” ); id. 462
(Plaintiff agreeing that Luis “pinched his butt and ‘came close’ to touching his ‘private
parts’); id. 4 70 (Plaintiff agreeing that Luis would “pinch and grab cmployees on the
buttocks, including Plaintiff and female waitresses”); id. {111 (Plaintiff agreeing that
Luis yanked his “‘shifl pants’ which then fell down”).) Mr. Armintrout testificd that he
was “talking about Antonio” and later “Luis” when he agreed that it was the same people
“engaging in male-on-male harassment . . . [and] male on female.” (dd. 35.)

Plaintiff alleges that this conduct is actionable under Title VII because it was

based on his “maleness.” (D.E. 20 at 4.) Applicable precedent, however, and the record

in this case, refutes that contention. The Seventh Circuit has held that “inappropriate

those two employees alone, leads the Court to disregard the “Steve and Juan” issues as
unnecessary to the Court’s analysis of whether the harassment Plaintiff alleges was gender-based,
except where otherwise noted herein, See also Paquet v. Puce, Suburban Bus Div. of Regional
Transp. Authority, 156 F.Supp.2d 761, 771 (N.D. Tl. 2001) (“The Seventh Circuit has expressly
noted that harassment directed at someonc other than the plaintiff is not as severe as harassment
directed at the plaintiff.”) (citing McPhaul v. Board Comn'rs of Madison County, 226 F.3d 558,
567 (7th Cir, 2000).


Nat'l Steel Corp., 197 F.3d 894, 900 (7th Cir.1999) (teaching that arguing about whether

an employer’s honestly held reason for an employment decision was well-founded, on
the one hand, or wrong, on the other, is simply “‘a distraction”). There are any number of
working conditions that can make a job quite unpleasant or perhaps even intolerable; an
imperious boss, an alcoholic boss, a verbally abusive or malicious boss, a psychotic boss,
and so forth. However, Title VII is a protection against discrimination, not a mechanism
to guarantee that all of the aforementioned problems—and the myriad of other ones that a
workplace can suffer—are prevented under a Title VII constructive discharge theory.
Accord, e.g., Whittaker v. Northern Ill, Univ., 424 F.3d 640, 648 (7th Cir. 2005)
(teaching that the “working conditions for constructive discharge must be even more
egregious than the high standard for hostile work environment because in the ordinary
case, an employee is expected to remain employed while seeking redress.”) (internal
quotation marks and citation omitted); id. at 645 (teaching that a showing of even a
hostile work environment in this setting, much less a constructive discharge situation,
requires proof of discrimination) (citation omitted); McPherson, 379 F.3d at 440
(working conditions must be worse to justify constructive discharge allegation than to
constitute hostile workplace claim); id, al 437-38 (threshold hostile workplace showing
requires harassment because of plaintiffs sex).

As explained above, Mr. Armintrout has failed to proffer a triable case of any
hostile workplace or other workplace discrimination based on or because of his sex. The
cooking area of the Defendant pizzeria was a place where the discussions and behavior
were vulgar and, at best, juvenile; however, Plaintiff was not subject to any

discrimination based on or because of his sex. Accordingly, given that Mr. Armintrout

24


including Luis’s putative effort to grab Plaintifl’s “private parts,” was an effort to “get

his goat,” and that “They all were. It was all a big — all a big joke.” (Ud. 77°; see also

id. 154 (undisputed that “Plaintiff did not think that Antonio literally wanted to have

sexual intercourse with him, but that he was engaging in such actions to ‘get his goat.””’).)
Steve Taube, a Bloomingdale Pizza employee, testified that Plaintiff and Luis

were “always arguing about work.” (/d. || 66.) Lee Ann Catalano, another employee,

testified that Plaintiff and Luis were “fighting all the time” over control in the kitchen

and that on one occasion, the shouting, swearing, and threatening between the two men
struggling for contro! caused her to seek assistance from Ms, Regina LuBecky, Plaintiff's
boss and the owner of Bloomingdale Pizza, (/d. §¥ 67-68.) Plaintiff did not tell LuBecky
about the behavior of which he now complains immediately after he started at
Bloomingdale Pizza because he thought Antonio was just trying only to “see what he was
made of.” (Jd. 47.) A couple of weeks later, however, Plaintiff allegedly told LuBecky
that “sexual harassment was rampant in the kitchen, both male on male and male on
female.” (D.E. 23 97.) In addition, Plaintiff told LuBecky that Antonio was not
listening to him, was using vulgar language, and was being defiant. (D.L. 22 fff 50-51.)
At some point, Plaintiff also told LuBecky that some of the employees, including
Antonio, were “obscene,” “inappropriate” and “disgusting,” but that “it’s no big deal
because it’s common in kitchens.” (dd. 452.) Mr. Armintrout claims that LuBecky

admitted to knowing that the behavior he reported was going on, but that she told him

* Plaintiff claims that “the citation to the record is misleading and taken out of context and docs
not support the alleged material fact,” moving “to strike” this allegation. (D.E. 22 4 77.) The
Court’s review of Plaintiff's deposition, however, reveals that the statement is well-supported.
Because Plaintitf does not cite to any evidence contrary to this assertion, it is deemed admitted.
See Matec, 191 F.R.D, at 584 (failure to adhere to 1..R. 56,1 requirements, including citation to
specific evidentiary materials justifying denial, is equivalent to admission).


Precedent teaches that lewd and ignorant scxual banter and inappropriate groping
may not, in certain circumstances at least, be evidence of any sexual advances. As the
Seventh Circuit, speaking through Judge Cummings, wrote in Johnson v. Hondo, Inc.,
125 F.3d 408 (7th Cir, 1997):

Although explicit sexual content or vulgarity may often take a factfinder a

long way toward concluding that harassing comments were in fact based

on gender . . . this nced not necessarily be the case. Most unfortunately,

expressions such as ‘fuck me,’ ‘kiss my ass,’ and ‘suck my dick,’ are

commonplace in certain circles, and more often than not, when these

expressions are used (particularly when uttered by men speaking to other

men), their use has no connection whatsocver with the sexual acts to

which they make reference—even when they are accompanicd, as they

sometimes were here, with a crotch-grabbing gesture. Ordinarily, they

are simply expressions of animosity or juvenile provocation ... .

id. at 412 (affirming grant of summary judgment for employer; emphasis added), To
survive summary judgment, there must be a basis in the record to conclude that the
harassers’ usage was different. /d.; accord, e.g., Spearman, 231 F.3d at 1085 (collecting
cases).

In this case, Plaintiff testified that the idiotic behavior of both Antonio and Luis
(who both were fired after Plaintiff left, in part based on Plaintiff's objections conceming
them) was designed to “get his goat” (see D.E. 22 9] 54, 77; see also id. 4 54 (relating
Plaintiff's statement that “it was all a big — all a big joke’). There also is substantial,
unrefuted evidence that both Antonio and Luis resented Mr, Armintrout’s presence
and/or the fact that he was hired into a managerial role instead of one of them. (/d. ff 43,
47, 64.) This uncontroverted evidence independently justifics summary judgment against
Plaintiff's Title VII hostile workplace claim, as it is clear (hat the complained-of

misconduct constituted what the Seventh Circuit labelled workplace “animosity and

juvenile provocation” as opposed to any harrassment based on or because of Mr.

21



Noreuil v. Peabody Coal Co., 96 F.3d 254, 258 (7th Cir. 1996) (“In general, we have held

that retaliation and age discrimination claims are sufficiently dissimilar that an
administrative charge of one fails to support a subsequent civil suit for another.”)
(collecting cases).!° Accordingly, Defendant is entitled to summary judgment on any Title
VII retaliation claim.

B. Plaintiff Independently Fails to Present A Triable Prima Facie Case
Conceming Retaliation

Title VII prohibits an employer from discriminating against an employee because
that employee has opposed any practice deemed unlawful under the Act. See 42 U.S.C. §
2000e-3(a). This provision “protects persons not just from certain forms of job
discrimination [and harassment], but ftom retaliation for complaining about the types of
discrimination it prohibits.” Miller v. American Family Ins. Co., 203 F.3d 997, 1007 (7th
Cir. 2000). “To prevail on a claim of retaliation, the plaintiff must show that: (1) he
complained about conduct that is prohibited by Title VIL; (2) he suffered an adverse
employment action; and (3) the adverse employment action was caused by his opposition
to the unlawful employment practice.” Spearman, 231 F.3d at 1086 (citation omitted).
“An ‘adverse employment action’ alters the ‘terms or conditions’ of one’s employment.”
Ta. (citing Silk v. City of Chicago, 194 F.3d at 788, 804 (7th Cir, 1999)).

At the summary judgment stage, a plaintiff may establish a prima facie case of

retaliation using either the direct method or the indirect method of proof. Under the direct

See also Herron v. DaimlerChrysler Corp, 388 F.3d 293, 303 n.2 (7th Cir. 2004) (“Under
Title VII, a plaintiff must file an EEOC complaint before proceeding with a federal case and can
only pursue those claims like or reasonably rclated to the allegations contained in the charge.
Herron’s EEOC charges . . . described racial discrimination, retaliation, and harassment, not
constructive discharge, As the district court found, the four-month delay between his February
EEOC complaint and his decision to leave was inconsistent with notice of constructive discharge,
Since the charges contained in the EEOC complaint were not like or reasonably related to his
EEOC allegations, Herron cannot proceed under Title VII on a constructive discharge claim.”)
(internal citation and quotation marks omitted).

27


complaint where discovery had closed and parties were “on the eve of summary
judgment proceedings”). The Court need not analyze on summary judgment the merits
of a claim that has not been brought. The Court’s decision to grant Defendant’s motion,
therefore, is unaffected by Plaintiff’s arguments relating to a constructive discharge
claim.

Moreover, even if Plaintiff had properly brought a claim for constructive
discharge (which he has not), and even if the Court would have allowed a post-
discovery/post-summary-judgment-briefing amendment of the complaint (which the
Court would not have done), a putative constructive discharge claim would not have
survived summary judgment on the record presented here in any event. Seventh Circuit
precedent repeatedly teaches that, not surprisingly, one cannot have a Title VI
constructive discharge claim where the alleged intolerable working conditions are not
discriminatory or unlawful within the meaning of Title VII. See McPherson v. City of
Waukegan, 379 ¥.3d 430, 440 (7th Cir, 2004); Gawley v. Indiana University, 276 3d
301, 315 (7th Cir. 2001) (citing Sweeney v. West, 149 F.3d 550, 557 (7th Cir. 1998)). As
Gawley explained, under Title VI, “(constructive discharge occurs when an employee’s
discriminatory working conditions become so intolerable that a reasonable person in her
position would be compelled to resign.” Jd., 276 F.3d at 315 (emphasis added). This
rule is consistent with extensive Seventh Circuit precedent teaching that, for purposes of
‘Title VIL, an employer’s employment practices can be grievously mistaken, “high-
handed,” or even “medieval,” so long as they are not discriminatory. Aungst v.
Westinghouse Elec. Corp., 937 F.2d 1216, 1220 (7th Cir.1991), overruled in part on

other grounds by Oxman y. WLS-TV, 12 F.3d 652 (7th Cir, 1993); accord, e.g., Green v.

23


thought Luis was also trying to “get his goat,” and that “They all were. Ii was all a big —

all a big joke.”). Regardless of whether the misconduct and vulgar dialogue was
sincerely related to carnal sex, however, under Seventh Circuit precedent, it was not
actionable under Title VII because it was perpetrated by equal-opportunity harassers who
directed their misdeeds at both male and female employees alike. (See, e.g., id 937,
70-72.)

This outcome, as dictated by the substantial Seventh Circuit precedent cited
above, is also consistent with the outcome of numerous trial court cases applying that
law. See, e.g., Goodum y. White, No. 03 C 3257, 2006 WL 566469, *23 (N.D. Ill. Mar.
3, 2006) (collecting Seventh Circuit precedent and granting defendant’s summary
judgment motion on a hostile environment claim where alleged harasser was
“disrespectful and demeaning to all of his employces regardless of their gender”);
Coughlin v. Wrigley Mfg. Co., LLC, No. 02 C 7849, 2004 WL 1064735, *7 (N.D. III.
May 7, 2004) (collecting Seventh Circuit precedent); Caines v. Village of Forest Park,
No, 02 C 7472, 2003 WL 21518120, *2 (N.D. LI. June 30, 2003) (collecting Seventh
Circuit precedent and holding that plainti(f had pleaded himself out of court and therefore
dismissing a same-sex harassment claim where “the detailed allegations of the [alleged
harasser’s] conduct portray an individual who directed vulgar and obscene conduct of a
sexual nature toward the male and female” individuals alike); Donlow v. SBC
Communications, Inc., No 05 C 0548, 2006 WL 1479548, *2 (E.D. Wis. May 25, 2006)
(granting summary judgment for defendant where evidence reflected that, although
alleged harasser may have harassed more men than women, he was the “quintessential

equal-opportunity harasser” in that he “reached out and touched ‘everybody,”” and


See Cooper-Schut v, Visteon Automotive Systems, 361 F.3d 421, 426 (7th Cir. 2004)

(teaching (hat “an employer violates Title VII if it is responsible for a ‘hostile work
environment.’”) (citation omitted). Sexual harassment claims may lie both in situations
where an individual is harassed by someone of the opposite sex, as well as in situations
where same-sex harassment is alleged. See Hamm v. Weyauwega Milk Products, Inc.,
332 F.3d 1058, 1062 (7th Cir. 2003) (citing Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 79 (1998), and explaining that “in same-sex harassment cases, the central
question is whether the harassment occurred ‘because of plaintiff's sex,’”).

Of particular relevance in this case, and as will be discussed further later, “Title
VII prohibits an employer from harassing an employee ‘because of the cmployee’s sex.’”
Spearman y. Ford Motor Co., 231 F.3d 1080, 1084 (7th Cir. 2000) (emphasis added and
further internal punctuation omitted; quoting Oncale, 523 U.S, at 78). Thus, “[s]ame-sex
sexual harassment is actionable under Title VII to the extent it occurs ‘because of” the
plaintiff's sex.” Jd. (further internal quotation marks and citation omitted). This
principle—that putative harassment, to be actionable under Title VII, must occur
“because of” the plaintiffs sex—-has been repeatedly articulated (hroughout Supreme
Court and Seventh Circuit precedent, See, ¢.g., Oncale, 523 U.S. at 79 (stating that Title
VII prohibits “discrimination ‘because of sex’”) (internal citation omitted); Wyninger v.
New Venture Gear, Inc., 361 F.3d 965, 975 (7th Cir. 2004) (“In order to maintain an
actionable claim of hostile work environment, Wyninger must first demonstrate that a
supervisor or coworker harassed her because of her sex.”) (citing Hilt-Dyson v. City of
Chicago, 282 F.3d 456, 462 (7th Cir. 2002)); Sitar v. Indiana Dept. of Transportation,

344 F.3d 720, 727 (7th Cir, 2003) (“Sitar complained only that she felt picked on, not


accord, ¢.g., Kampmier v. Emeritus Corp., 472 F.3d 930, 939 (7th Cir. 2007) (teaching
that “timing alone is insufficient to establish a genuine issue of material fact to support a
retaliation claim”) (citation omitted).

Nor has Plaintiff satisfied the prerequisites for the Mc-Donnell Douglas-style
prima facie case. Without even needing to consider the other prongs, Plaintiff has failed
to identify any similarly situated employee who had not engaged in protected activity and
was treated more favorably than him.” This failure to identify a morc-favorably treated
comparator also warrants summary judgment. See Tomanovich, 457 F.3d at 667
(affirming summary judgment where plaintiff “did not point to any other employee (much
less a similarly situated employee)” who was treated more favorably).

Cc. Plaintiff's Claim Independently Fails Because He Presents No Triable
Pretext Case

In addition, and again independently, even if Plaintiff had made a prima facie
showing of retaliation—and the Court finds that he has not—his retaliation claim would
still not survive summary judgment because Defendant has come forward with a
legitimate, uncontradicted, and non-invidious reason for its adverse action. See Kulumani
v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000) (leaching that pretext
“means a dishonest explanation, a lic rather than an oddity or an error”); accord, e.g.,
Ballance y. City of Springfield, 414 T.3d 614, 617 (7th Cir. 2005) (teaching that, for
purposes of showing pretext, it is insufficient to show that an employer's “decision was

mistaken, ill considered, or foolish”; as long as the employer honestly believes its reasons,

“ Tn fact, Plaintiff presents evidence indicating that those who complained were treated well.
According to Plaintiff, after Steve Taube complained about Juan “slapping people’s asses,” Ms.
LuBecky, the owner, un-fired Steve (Juan had attempted to fire him) and “talked to Juan,”
resulting in Juan never slapping “Steve’s ass again.” (D.F. 23 99 29-30; see also D.E. 11, Ex. 8 at
30.)

30


On or about May 22, 2003 (the day before Plaintiffs last day at Bloomingdale

Pizza), Plaintiff and Antonio got into a verbal argument, with Antonio screaming at
Plaintiff, calling him a “fucking asshole,” and saying that Plaintiff “burned the sauces.”
(Ud. | 58, 121, 126.) Plaintiff felt that this was the “last straw” with Antonio and
attempted to fire him, telling Antonio, “Get out. You're gone.” (D.E. 22 57.)
However, when Plaintiff arrived at work the next day, Antonio was still working there
and LuBecky, the pizzeria owner, told Plaintiff that Antonio was not being fired at that
lime. (Jd. $59.) That same day, approximately three months after Plaintiff's first day at
Bloomingdale Pizza, luBecky told Plaintiff that she did not believe that he had the
ability to effectively manage the kitchen and it was casier to fire Plaintiff than to get rid
of the entire kitchen staff, (D.E. 22 4 123; D.E. 26 432.) Apparently out of sympathy
for Plaintiff, who had money problems, LuBecky offercd to retain Plaintiff in a cook’s
position, with corresponding (i.e., lower) wages. (D.E. 22 § 124.*) Instead of accepting
this arrangement, Plaintiff told LuBecky “1 can’t live on that” and “parted company”
with Bloomingdale Pizza. (dd | 125.) Subsequently, but prior to the filing of the instant
suit, and based in part on Plaintiff's allegations, LuBecky fired Antonio, Luis, and Juan.
(Ud. J] 61, 78, 92.)

Other than attempting to fire Antonio relating to his statement regarding the
burned sauce, Plaintiff never attempted to discipline cither Antonio or Luis for any of the
allegedly harassing conduct he experienced or witnessed, or for refusing to follow his
work orders. (Jd. 995.) For example, when Luis refused to perform a work task in
question, hc would “leave it alone” rather than engaging in a game of “Yes, you are; no,
I’m not; yes, you are; no, I’m not,” with Luis. (dd. 196.) Plaintiff felt that although he

* Plaintiff's objection to this statement of fact is not well-taken.


that she did not know what to do about it, (D.E. 23 4 8.)° LuBecky stated that she did

not want to fire the employees engaging in this behavior in part because she did not want

to have to rehire and retrain all of the employees. (/d. §9.)’ At some point later, Plaintiff
told LuBecky that he and Antonio were getting along better and that the two of them had,

figuratively, “kissed and made up.” (D.F, 22 755.)

Ms. LuBecky herself witnessed at least part of the physical fight between Plaintiff
and Luis, and she actually nceded to break it up. (dd. $f] 113-14.) Immediately thereafter,
LuBecky told Luis that Plainuiff had the power to fire both Luis and his other
subordinates—although Plaintiff claims that he really did not have such power,
notwithstanding his admission that LuBecky so informed the workforce. (/d. 116; D.E.
23, {| 9-10.) In either event, it appears clear that LuBecky, the sole owner of the
pizzeria, expected all of the managers to consult with her about such employee
termination decisions (D.E. 26 | 27); it is undisputed that Plaintiff routinely spoke with
and sought out conversations with Ms. LuBecky in which he discussed work issues as
well as personal issues he was facing, such as issues he was having in his marriage and
with his health. (D.E. 22 4 29 (Plaintiff became “quite fond” of Ms. LuBecky and would

have such conversations, at least briefly, on a daily basis); id. ¢ 109.)

® Although Defendant “moves to strike the legal conclusions contained” in these paragraphs
(referring to DE. 23 4] 7-9), and asserts that “Plaintiff's citations to the record do not support the
legal conclusions” within the numbered paragraphs, a review of the cited document, namely Mr,
Armintrout's deposition, reveals that Plaintiff did testify that he and LuBecky discussed what he
believed to be “sexual harassment in the kitchen,” regardless of whether, as a legal matter, the
behavior is in fact actionable under Title VIL. Defendant does not deny that Plaintiff and
LuBecky discussed what Plaintiff termed “sexual harassment in the kitchen,” and the Court takes
the fact of the conversation as truc, without regard to its legal accuracy.

* Although defendant “denies” that LuBecky “prevented plaintiff from firing employees,” Mr.
Amnintrout’s deposition supports the assertion that she told Mr. Armintrout she “did not want to
do that because you've got to rehire and retrain and (hen that’s a whole mess.” (Plaintiff's Dep.
at 80.)


further finding that although he “touched different body parts when harassing men and

women,” this “docs not create enough disparity to constitute gender-based discrimination
of men.”) (citing Holman, 211 F.3d at 403), While the Court in no way condones the
conduct Plaintiff alleges (hat he experienced at Bloomingdale Pizza, applicable precedent
teaches that his remedy for such misconduct does not lie in Title VII, but rather lies in
state court on state law (¢.g., assault or battery) claims. See Holman, 211 F.3d at 403
(“the unfortunate objects of such harassment [by an “equal opportunity” harasser] may be
limited to state law for a remedy,”) (citing Joknson v. Hondo, Inc., 125 F.3d 408, 410
(7th Cir,1997)).?

Cc. The Complained Of Conduct Appears To Relate to Workplace Disputes
and Not Sexual Relations In Any Event And Is Dismissable on Such Basis

In addition to Plaintiff's claims being nonactionable under Title VII because the
behavior of which he complains was unrelated to his gender, Defendant argues that even
if the behavior was directed only at Plaintiff, it would not be actionable because it related
to workplace disagreements or was simply reprehensible juvenile behavior and was not
related to Plaintiff’s gender in any event. (D.F. 11 at 8-10.) Defendant appeurs to be
correct, which provides a second independent basis to reject the Title VIT hostile

workplace claim,

2 ‘The fact that some of the conduct Plaintiff alleges included references to his wife and
stepdaughters does not change the conclusion that Plaintiff has not shown that he was
discriminated avainst because of his sex. See Johnson v. Hondo, Inc., 125 F.3d 408, 413 (7th Cir.
1997) (finding that plaintiff’s contention that his alleged harasser’s actions were a homosexual
advance were “belied by his own testimony” that the alleged harasser made sexually explicit
comments about plaintiff's girlfriend and affirming summary judgment on same-sex harassment
claim); accord Equal Opportunity Employment Commission v. TruGreen Ltd, P’ship, \22 F.Supp
2d 986, (W.D. Wis. 1999) (Crabb, J.) (granting summary judgment in a same-sex discrimination
case and holding that “[t]here is no meaningful way of distinguishing . . . this case .. . from
Johnson. Both cases turn on allegations that a male employee directed lewd, demeaning conduct
and remarks steeped in sexual overtones toward a male coworker and the coworker’s wife or
girlfriend.”).

19


ANALYSIS
Summary Judgment Standards
Summary judgment is proper where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as lo any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining whether there is a

genuine issue of fact, the court “must construe the facls and draw all reasonable
inferences in the light most favorable to the nonmoving party.” Foley v. City of Lafayette,
359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing party
must go beyond the pleadings and “set forth specific facts showing that there is a genuine
issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal
quotation marks and citation omitted).
1. Applicable Title VII Principles

Defendant has moved for summary judgment, arguing that the “undisputed
material facts in this matter establish that Plaintiff cannot sustain his claims as a matter of
law” under Title VII. (D.E. 11 at 1.) Title VII makes it unlawful for an employer “to
discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race, color, religion, sex or
national origin.” 42 U.S.C. § 2000e-2(a)(1). There are several ways to frame ‘Title VII
claims and, with all respect, it is not entirely clear from Plaintiff's Complaint how he
intended to frame his, as he fails to allege any scparate counts. However, because
Plaintiff alleges an “intimidating, hostile and offensive work environment,” the Court

will consider his claim as a “hostile work environment” or “sexual harassment” claim.



cannot even establish the threshold “hostile workplace” showing within the meaning of
Title VII, he cannot make the even greater showing required to make out a colorable Title
VII constructive discharge claim.
Vv. Any Title VI Retaliation Claim Fails
Plaintiff alleges in his Complaint that after complaining of the unwelcome sexual

conduct described therein, he “suffered an adverse employment action by being
terminated on or about May 23, 2003” (D.E. 1 912) and that “a causal connection exists
between Plaintiff's opposition and complaints of sexual harassment and Plaintiff's
termination.” (/d. § 13.) This claims fails for three independent reasons. First, Plaintiff
failed to include such a claim, as he must, in his EEOC charge; he therefore cannot
advance it for the first time now in this litigation. Second, Plaintiff has failed to offer any
proof indicating that there is a causal connection between his complaint of harassment
and his termination/demotion, and he has similarly failed to offer any evidence indicating
that similarly situated individuals who did not complain about sexual harassment were
treated more favorably than him. Thus, he fails to adduce a triable prima facie case.
Third, and again independently, Plaintiff has failed to offer any evidence indicating that
Defendant’s non-invidious reason for its adverse employment action was pretextual.
This also warrants the granting of the summary judgment motion.

A. Mr. Armintrout Failed To Present Any Retaliation Claim to the EEOC

Mr, Armintrout failed in his EEOC discrimination charge to advance any Title VII

Tetaliation claim. In fact, Plaintiff failed to allege in his EEOC charge that he ever

* Discovery seems to have revealed that Plaintiff was not terminated, but rather was demoted on
May 23, 2003. (D.F. 22 4125.) The distinction is irrelevant, however, to the Court’s analysis, as
the Court considers both termination and demotion as adverse employment actions. Put
differently, whether Plaintiff was fired or whether he quit in the face of a demotion, the outcome
is the same,

25


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

MIKE ARMINTROUT,

Plaintiff,
No, 04 € 313
v.
Judge Mark Filip
BLOOMINGDALE’S PIZZA, INC,
d/b/a ROSATI’S PIZZA,

eS SS eS

Defendant.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT'S SUMMARY JUDGMENT MOTION

Plaintiff, Mike Armintrout (“Plaintiff or “Mr. Armintrout”), is suing Bloomingdale
Pizza, Inc. (“Bloomingdale Pizza, Inc.” or “Defendant”), alleging violations of Title VIT
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seg. (“Title VII").
Plaintiff, a white male, alleges that he was subjected to a gender-based hostile work
environment and suffered an adverse employment action in retaliation for lodging
complaints about it. (D.E. 1 ff] 10, 12, 14.)! Defendant has moved for summary
judgment in accordance with Fed. R. Civ. P. 56. For the reasons stated below, the Court

grants Defendant’s motion.

RELEVANT FACTS?

' The designation “D,E.” refers to the docket entry number of the cited document, followed by
the appropriate paragraph or page number.

? The Court takes the relevant facts from the parties’ respective summary judgment filings,
including their filings required under Local Rule 56.1: see, ¢.g., D.E. 11, D,E. 22-23, D.E. 26,
Where the parties disagree over relevant facts, the Court sets forth the competing versions, where
germane. In addition, the Court, as it must, resolves genuine factual ambiguities in the
non-moyant’s favor. See Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir, 2004). Local
Rule 56.1 (*L.R. 56.1”) requires that statements of fact contain allegations of material fact, and
the factual allegations must he supported by admissible record evidence. See L.R. 56.1; Malec v.


employment practice by [Title ViI].’ 42 U.S.C. § 2000e-3(a). This type of discrimination
is commonly called ‘retaliation.’”). ‘This claim also fails, as explained below.”
TM. —Plaintifi"s [ostile Work Environment Claim Fails

A, To Be Actionable as a Hostile Work Environment Claim Under Title VI,
The Complained-of Behavior Must Be Because of Plaintiff's Sex

To survive a summary judgment motion, an employee alleging a gender-based
hostile work environment must show: “(1) [Jhe was subjected to unwelcome sexual
harassment; (2) the harassment was based on sex; (3) ‘the harassment had the effect of
unreasonably interfering with the plaintiff's work performance in creating an
intimidating, hostile or offensive working environment that affected seriously the
psychological well-being of the plaintiff, and (4) there is a basis for employer liability.””

Robinson v. Sappington, 351 F.3d 317, 328-29 (7th Cir. 2003) (quoting Parkins v, Civil

* Because Plaintiff does not anywhere allege that Defendant took an adverse job action against
him while motivated by an impermissible purpose, such as gender discrimination, the Court does
not analyze his claim as one for sex discrimination. Nor, if it did, could Plaintiff survive
summary judgment on such a claim. Precedent teaches that to survive a motion for summary
judgment, a claimant alleging sex discrimination must identify direct evidence that his
employer's decision to take an adverse job action against him was motivated by an impermissible
Purpose, such as sex. See, e.g., Raymond v, Ameritech Corp., 442 F.3d 600, 610 (7th Cir. 2006).
Alternatively, if he cannot present evidence under the “direct method” of proof, a Title VIT
claimant can proceed under the indirect/MeDonnell Douglas framework by establishing that: (1)
he was a member of a protected class; (2) he was performing his job satisfactorily; (3) he
experienced an adverse employment action; and (4) similarly situated individuals were treated
more favorably. See, ¢.g., id. Plaintiff has presented no evidence under the “direct method” that
Bloomingdale Pizza demoted or terminated Plaintiff because of his gender. With respect to the
indirect method, even assuming that he could satisfy all of the other prongs of this framework, an
assumption the Court merely makes for the sake of argument, Plaintiff has not presented any
evidence that similarly situated employees outside his protected class (i,¢., female employees)
were treated more favorably. That defeats such a claim. See, ¢.g., id. at 611 (affirming grant of
summary judgment for defendant in a Title VII case “[bJecause there is no evidence that
Raymond was teated differently than a similarly situated employee outside her protected class,”
and therefore she “ha[d] not made her prima facie case of discrimination.”). In addition, the case
would independently fail on pretext grounds, as Plaintiff has presented no evidence suggesting
that Defendant’s proffered basis for removing him from a managerial position—i¢., that Plaintiff
had shown an inability to manage and control the workforce—is a lie or false pretext for unlawful
discrimination. See, ¢.g., Kulumani v, Blue Cross Blue Shield Ass'n, 224 03d 681, 685 (7th Cir.
2000). That reason also independently would support summary judgment for Defendant on any
sex discrimination claim,


that she was discriminated against ‘because of sex or gender, which is what Title VII
requires,”) (citation omitted), As a corollary to this principle, Seventh Circuit precedent
teaches that the so-called “equal-opportunity” sexual harasser with respect to men and
women, even such a harasser who uses sexually charged or vulgar words or behavior, is
outside the ambit of Title VII because there is no discrimination occurring on the basis of
sex. See Holman v. State of Indiana, 211 F.3d 399, 403 (7th Cir. 2000) (dismissing
claims of husband and wife who alleged that their supervisor sexually harassed both of
them by requesting sexual favors, and stating that “Title VU does not cover the ‘equal
opportunity’ ... harasser .. . because such a person is not discriminating on the basis of
sex”) (collecting cases; emphasis in original); accord, ¢.g., Oncale, 523 U.S. at 80 (“The
critical issue, |as] Title VII's text indicates, is whether members of one sex are exposed
to disadvantageous terms or conditions of employment to which members of the other
sex are not exposed.’”) (quoting Harris v, Forklift Systems, Inc., 510 U.S. 17, 25 (1993)
(Ginsburg, J., concurring); Wyninger, 361 F.3d at 976 (dismissing hostile work
environment claim where the evidence showed that the putative harassers were “crude
individuals who treated everyone poorly”) (internal punctuation and citation omitted).

As explained below, this principle is fatal to Plaintiff’s hostile workplace claim.

In addition, Plaintiff alleges in his Complaint that “[a]fter complaining of said
conduct, [he] suffered an adverse employment action by being terminated.” (D.E. 1 at 4.)
Therefore, the Court also considers the viability of a Tille VII retaliation claim. See
generally Tamanavich v. City of Indianapolis, 457 F.3d 656, 662 (7th Cir. 2006) (“Title
VII makes it unlawful ‘for an employer to discriminate against any of his employees or

applicants for employment . . . because he has opposed any practice made an unlawful



the staff. See Ballance, 424 F.3d at 617." Plaintiff has not come forward with such

evidence. The facts that have been presented do not support a finding that Defendant’s
reason for demoting Plaintiff was pretextual, but rather indicate that it was genuine. For
all of these reasons, and without regard to whether Plaintiff's claim for retaliation under
Title VII is otherwise barred as a matter of law, Defendant’s motion for summary
judgment is well taken as to any such pulative retaliation claim.
CONCLUSION

For the reasons stated above, Defendant’s summary judgment motion (D.E. 11) is

granted.?!

So Ordered.

Mt

United States Distri¢t Judge
Northern District of Illinois

Dated: J+ ly Of

* Seventh Circuit precedent teaches, not surprisingly, that an employer can terminate or take
other disciplinary action against an employee like Plaintiff who initiates a physical fight with a
coworker, even if thal coworker is allegedly engaging in conduct violative of Title VII See
Johnson v. Hondo, Ine., 125 F.3d 408, 415 (7th Cir. 1997) (affirming summary judgment on
retaliation claim where employer fired alleged victim of malc-on-male sexual harassment who
initiated physical fight with alleged harasser). Although any ethnic-, sex-, or race-based
harassment is deplorable, the law naturally requires a putative victim to seek civil redress, and it
does not license the victim to simply beat up the putative harasser or disable an employer from
taking disciplinary action against a grown man who would physically attack a coworker.

2 For some reason, the automatic dockeling records of the District Court did not pick up filing of

the summary judgment motion. That resulted in this opinion being issued much later than it
normally would have been. The Court apologizes to the parties for any delay.

32


then pretext has not been shown). Defendant explains that Plaintiff was demoted—not

because of any complaints of discrimination and/or sexual harassment—but rather
because Ms. LuBecky, the owner, “felt at that point Plaintiff did not have the ability to
manage effectively because he did not have control of the kitchen... .” (D.E. 22 J 123)
and because “it was easier to get rid of Plaintiff than to get rid of the whole kitchen staff.”
(id. § 124.) The record assembled casts no doubt on the sincerity of such belief, and
precedent teaches that it is not this Court’s place to decide whether Ms. LuBecky’s
assessments about her restaurant were wise ones. See, e.g., Blise v. Antaramian, 409 F.3d
861, 867 (7th Cir. 2005) (collecting cases and stating that courts should not attempt “to sit
as a superpersonnel department” in which a terminated employee can “have the merits of
an employer's decision replayed to determine best business practices.”). Plaintiff himself
acknowledged that he felt “impotent” and “outcast” in his position as kitchen manager.
(D.E. 22 J 98-99.) Plaintiff never disciplined cithcr Antonio or Luis for refusing to
follow his work orders, nor did he feel he had the authority to do so, regardless of the fact

7

that Plaintiff was aware that he had been hired to “manage” the kitchen employees. (/d.
22 9 25, 95; D.E. 1, Ex. 1.) Plaintiff did not tell LuBecky about what he believed to be
inappropriate behavior between Juan and Steve Taube until LuBecky specifically asked
him if he had ever scen Juan touch anyone in an inappropriate manner. (D.E. 22 ff 98-
99,) And, last but not least, Plaintiff had recently cngaged in a physical altercation with
one of his employees that needed to be broken up by Ms. LuBecky herself. (See, ¢.g.,
D.E. 22 4 63, 112-113.)
To demonstrate pretext, Plaintiff would have to present some evidence that

LuBecky lied and did not honestly believe her stated reason for his discharge—that his

termination was the result of his inability to manage the kitchen and maintain control over

31


tried to manage kitchen employces, he never had any “backup or authority by ownership”
and that the behavior by his subordinates made him feel “outcast” and “impotent” as far
as what he could do as kitchen manager. (/d. § 101.)

After leaving the pizzeria, Plaintiff received two weeks of pay and LuBecky gave

him two weekly checks at once in light of his financial condition. (/d. J 127.) Plaintiff

never filed for unemployment benefits; he testified that “I’ve been through the same

situation that I went through at Bloomingdale's Pizza before, and I would have lost.” (dd.
128.) Plaintiff's statement appears to be a reference to the termination of his job
preceding the Bloomingdale Pizza job, at “Nick and Tony’s” in Geneva. (/d. § 129.)
There, he worked as an executive chef for a period of two weeks, but he then received
notice that he was being demoted from a management position to that of a line cook.
eZ)

On November 21, 2003, Armintrout filed a charge of discrimination with the
FEOC, alleging that he was harassed on the basis of his sex while he was employed at
Bloomingdale Pizza. (/d. § 1.) He received a “Notice of Right to Sue” letter from the
EEOC on November 28, 2003. (/d. 42). Plaintiff then filed his Complaint in this matter
on January 16, 2004. (D.E. 1.) Plaintiffs Complaint contains one unnumbered count
alleging a violation of Title VIL. (/d) In the Complaint, Plaintilf alleges that
“unwelcome sexual conduct created an intimidating, hostile and offensive work
environment.” (/d. § 10.) Plaintiff further alleges that after complaining of this
unwelcome conduct, he “suffered an adverse cmployment action by being terminated on

or about May 23, 2003.” (dd. 12.)


Armintrout’s sex. Johnson, 125 F.3d at 412; accord Hamm, 332 F.3d at 1064 (“teaching
that, “in some cases, sexually explicit remarks among male coworkers may be ‘simply
expressions of animosity or juvenile provocation’” and affirming grant of summary
judgment to employer in sexual harassment case); D.E. 22 Yf 66-67 (uncontroverted
evidence from pizzeria employees who saw Plaintiff and Luis“fighting all the time” over
control in the kitchen and “always arguing and fighting about work.”).
IV. Any Constructive Discharge Claim Fails

For the first time in his brief opposing Defendant’s summary judgment motion,
Plaintiff sccms to claim that he has brought a claim lor “constructive discharge” under
Title VII. (D.E. 20 at 5.) As an initial matter, and with all respect, Plaintiffs attempt to
amend his Complaint in his brief opposing summary judgment is procedurally improper.
If Plaintiff had wished to amend, he should have brought a motion to do so—although
such an cleventh-hour motion certainly would have been denied. See /indo v. Univ. of
Health Sciences/The Chicago Med’l School, 65 V'.3d 608, 615 (7th Cir, 1995) (discussing
Seventh Circuit precedent reflecting “the litany of instances in which we affirmed a
district court's denial of leave to amend a complaint where discovery has ended and a
motion is pending for dismissal of the count or for summary judgment”); accord, ¢.g.,
Conner v. Illinois Dept. of Natural Resources, 413 F.3d 675, 679-680 (7th Cir. 2005)
(finding that the district court did not abuse its discretion by denying employee’s request
for leave to amend complaint to add temporary assignment pay claim, when claim was
improperly raised for first timc in response to employer’s summary judgment motion and
employee never filed motion for leave to amend); Feldman v. American Mem’ Life Ins,

Co., 196 F.3d 783, 793 (7th Cir, 1999) (affirming denial of motion for leave to amend

22



method, the plaintiff must establish that he was engaged in protected activity, that he
suffered an adverse action, and that the adverse action was causally connected to his
protected activity. See Treadwell v, Office of the Ill. Sec'y of State, 455 F.3d 778, 781 (7th
Cir, 2006). Under the indirect method, a plaintiff initially must make out a prima facic
casc that he was engaged in a protected activity, suffered an adverse employment action,
was satisfactorily performing his job at the time he suffered the adverse action, and that a
similarly situated employee who was not engaged in protected activity was treated more
favorably, See id. at 782; Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir.
2002), If the plaintiff establishes these elements, the burden of production shifts to the
defendant to come forward with a legitimate, non-invidious reason for its adverse action.
See id. Once the defendant presents a legitimate, non-invidious reason for the adverse
action, the burden remains with the plaintiff to present evidence that the defendant’s
reason is pretextual. See id.

The record reveals that Defendant demoted or fired Plaintif{—which, in either
event, was an adverse employment action. (The record reflects that Defendant offered to
keep Mr, Armintrout on as a $10.00/hour salaried employee, notwithstanding that
Defendant determined that it could not retain Mr, Armintrout in a managerial capacity
(D.E. 22 4 124)—a decision that seemingly was largely motivated by sympathy towards
Mr. Armintrout and his financial hardships.'’ (He apparently has gone through two

personal bankruptcies and has a variety of financial demands facing him. See, ¢.g.,

"" See Plaintiff's Dep. at 117 (relating that, at the time, Ms. LuBecky, the pizzeria owner, told
Plaintiff that “she knew that I needed the money, so she’d be willing to keep me on at $10 an
hour for 40 hours”); see also LuBecky Dep, at 66-67 (similar).

28



night kitchen manager at the time, also “dry-humped,” pinched, fondled, and
inappropriately touched Bloomingdale Pizza employees, both male and female, including
Plaintiff, although Plaintiff himsel( was never a victim of any allegedly harassing
conduct by Juan, (/d. 99 36-37, 53.) Plaintiff also observed Luis “pinch other male
employees on their ‘boobs’” and kiss male employees on their checks while stating, “Oh,
here’s my boyfriend, my lover.” (Jd. 72.) At one point, Luis pinched Plaintiff's “butt”
and “came close” to touching his “private parts.” (/d. {| 62.) In addition, Luis “pantsed”

(ie., pulled down Plaintiff's pants) on one occasion. (D.E. 26 4 12.) This led toa

physical fight between Plaintiff and Luis, in which Plaintiff himself took the first swing,

and which needed to be broken up by Ms. LuBecky, the pizzeria owner. (D.E. 22 f 63,
112-113.) In the fight, Plaintiff (who is 6°2” and weighs some 310 pounds), took down
Luis (who apparently is some one hundred pounds lighter and scveral inches shorter)

“instantly and kept his knee on Luis’s chest after Luis touched or tugged on Plaintiff's

“big goofy pants with ... peppers” on them. (/d. 115; Plaintiff's Dep. at 77, 111.)
Plaintiff first explained that he initiated the fight because he “wanted to do some more
ass kicking” (D.E. 22 114), and three days later he told the pizzeria owner that he had
“initiated the fight because I thought | could get the best of him” but that Plaintiff “forgot
I was not as young as | uscd to be and I gol my ass kicked.” (7d 117).

The kitchen employces at the pizzeria, in addition to engaging in the
aforementioned vulgar and/or inappropriate pinching and grabbing bchaviors towards
men and women alike, often yelled at cach other and threw dough at each other. (Jd. J
38.) The employees engaged in other juvenile behavior such as placing stickers and food

on each other, (/d, 40.) Plaintiff testified that he believed that this sort of behavior,


conduct that is inflicted on both sexes, or is inflicted regardless of scx, is outside [Title
VII's| ambit.” Holman, 211 F.3d at 403 (dismissing claims of husband and wife who
alleged that their supervisor sexually harassed both of them by requesting sexual favors
because such behavior did not involve discrimination based on gender), Or, as the
Seventh Circuit taught in Berry v, Delta Airlines, Inc., 260 F.3d 803 (7th Cir. 2001), in
the context of a hostile workplace claim:

“(lhe critical issue . .. is whether members of one sex are exposed to

disadvantageous terms or conditions of employment to which members of the

other sex are not exposed. Oncale, 523 U.S. at 80 (citation omitted),

Inappropriate conduct that is “inflicted regardless of sex[] is outside the statute’s

ambit,” Holman v. State of Indiana, 211 F.3d 399, 403 (7th Cir. 2000), and an

employer cannot be held liable for creating or condoning a hostile working
environment unless the hostility is motivated by gender.
Jd, 260 F.3d at 808 (further collecting numerous other Seventh Circuit cases); see also
id. at 809 (finding that objectionable incidents, while unfortunate, “are not actionable as
sexual harassment under Title VII (either collectively or individually) because Berry has
presented no evidence suggesting that any of these incidents were motivated by her
gender”).

One can certainly posit a different rule—namely, a rule that proscribes
inappropriate conduct generally which is scxually-related or sexual in content, Ina
scholarly opinion by District Judge Barbara Crabb, she traced the history of Seventh
Circuit jurisprudence in this arca, including certain carly analyses thal perhaps suggested
aspects of such an approach. See E.£.0.C. v. Trugreen Limited Partnership, 122 F.
Supp. 2d 986, 990 (W.D. Wis. 1999). As Judge Crabb explained, however, “[i]n Oncale,

the Supreme Court expressed explicit disapproval of this reasoning.” /d. (citing Oncale,

523 U.S. at 79-80, which in turn specifically criticized certain Seventh Circuit caselaw).


himself has presented unrefuted evidence that Antonio and Luis were exactly the type of

“equal opportunity” harassers whose actions the Seventh Circuit found in Holman do not

give rise to liability under ‘litle VII, the Court grants Defendant's motion for summary

judgment on Plaintiff's hostile work enyironment claim. Accord Holman, 211 F.3d at

403 (“If anything, it would be anomalous not to require proof of disparate treatment for
claims of sex discrimination (of which sexual harassment is a subset), yet that is
essentially what the Holmans urge. To do so would change Title VII into a code of
workplace civility, and the Supreme Court has already rejected such an interpretation of
‘Title VII") (emphasis in original; citing Oncale, 523 U.S. at 80).

In this case, it is undisputed that Mr. Armintrout “alleges that he witnessed these .
. . male employees (Antonio, Luis, and Juan) physically “dry-hump,” pinch, fondle, and
inappropriately touch both male and female employees.” (D.E. 22 4 37; see also id. § 53
(similar).) As explained further below, this conduct does nol appear, at Jeast as to Mr.
Armintrout, to actually constitute sexual advances; instead, it appears to be crude and
vulgar efforts on the part of the putative harassers, who had more seniority than Mr.
Armintrout and/or wanted to have his supervisory position (id. §§ 42-43, 64, 67), to “‘get
my [/e., Plaintifi’s] goat’ (id. 54 (quoting Plaintiff’s Dep. at 73), or to “‘see what he
was made of.” (dd. 4 47 (quoting Plaintilf’s Dep. at 78); see also id. J 49 (discussing
Plaintiff's deposition testimony that such misbehavior and misconduct “goes on” in
restaurants, but suggesting that the misconduct at the pizzeria was more extreme than
usual); id. § 52 (relating Plaintiff's statement to the pizzeria owner that “it’s no big deal

because it’s common in kitchens”)"’; id, 4 77 (relating Plaintiff's testimony that he

Plaintiff has not controverted the evidence in D.E. 22 52 within the rules applicable to Rule
56.1 assertions. Accordingly, the statement in paragraph, which is supported by the cited
evidence, is credited.


supervising employees,’ that he might have to “weed through” problem employees, and
that he would be expected to take care of any other problems that might arise. (D.E. 22
25-26.) The day crew at Bloomingdale’s Pizza included, for example, a female
dishwasher, the wait staff, and two male cooks, Antonio Cruz (“Antonio”) and Luis
(“Luis”) Negrete. (Jd. {9 28; D.E. 1, Ex. 1.) Both Antonio and Luis worked at
Bloomingdale Pizza prior to Mr. Armintrout’s hiring. (D.E. 22 § 42.)

Almost immediately after starting work at Bloomingdale Pizza, Plaintiff claims
that he “witnessed and experienced sexually harassing conduct on an almost daily basis.”
(id. 134.) On his very first day, Antonio asked Plaintiff if he was married, “how many
times he had masturbated the night before, if he ‘ate out’ his wife or stepdaughters,” and
whether Antonio could “fuck” Plaintiff's stepdaughters,’ (/d. 46.) Thereinafter,
Antonio would ask these same or similar questions regarding Plaintiffs wife or
stepdaughter on a daily basis. (/d. 48.) In addition, Luis and Antonio “often told” Mr.
Ammintrout that they wanted to have sex with him. (D.E. 26 4.) This and similar
behavior was ongoing.

During the course of his employment at Bloomingdale Pizza, Antonio would
approach Plaintiff and other employees, both male and female, from behind while fully
clothed and imitate the act of anal intercourse. (Plaintiff referred to this in his deposition.
as a“dry-hump”). (D.E. 22 9 53.) Plaintiff did not believe that Antonio literally wanted
to have sexual intercourse with him, but instead thought that Antonio was engaging in

these actions to “get his goat.” (/d. 4 54.) Antonio, Luis and Juan, Bloomingdale Pizza’s

3 Unless otherwise specified, the denomination “employee” means a nonsupervisor.

4 Many of the undisputed facts in this matter describe vulgar and offensive language and conduct.
While the Court regrets that it must do so, it believes directly quoting the language used and
describing the conduct alleged is required in order to render an accurate opinion,



complained about the allegedly discriminatory conduct or that he was fired, demoted, or

constructively discharged.’

The Seventh Circuit has taught that: “[ffiling an EZOC charge, of course, is a
prerequisite to suit under Title VIL, in order for the EEOC to have a chance to settle
disputes before lawsuits are undertaken.” Chambers v. American Trans Air, Inc., 17 F.3d
998, 1003 (7th Cir. 1994) (affirming summary judgment against claims not raised in
EEOC charge) (citation omitted), Although a plaintiff may pursue a claim not explicitly
included in an EEOC complaint if his allegations “fall within the scope of the charges
contained in the EEOC complaint,” Cheek v. Peabody Coal Co., 97 F.3d 200, 202 (7th
Cir. 1996) (citation omitted), “[nJormally, retaliation, scx discrimination, and sexual
harassment charges are not ‘like or reasonably related’ to one another to permit an EEOC
charge of one type of wrong to support a subsequent civil suit for another.” Sitar, 344
P.3d at 726 (citing, inter alia, Cheek v. W. and S. Life Ins. Co., 31 F.3d 497, 501 (7th Cir.
1994) (additional citations omitted)); accord, e.g., Chambers v. American Trans Air, Inc.,
17 F.3d 998, 1003 (7th Cir. 1994) (holding that, “to prevent circumvention of the EEOC’s
investigatory and conciliatory role, only those claims that are fairly encompassed within
an EEOC charge can be the subject of a resulting lawsuit.”) (collecting cases). ‘There is
nothing about the record in this case that suggests a deviation from the presumptive rule
thai a retaliation claim (or constructive discharge claim) is distinct from a hostile
workplace claim. Asa result, Mr, Armintrout cannot for the first time allege a retaliation

claim via his Complaint when he failed to present such a claim to the EEOC. See, e.g.,

* Because Plaintiffs EEOC charge did not allege a Title VII constructive discharge claim, it too
fails for this additional independent reason. Given the other reasons why the putative
constructive discharge claim fails, as explained above, the Court will not further address this
defect in the body of the opinion.

26


During the second week of February 2003, Plaintiff was hired by Bloomingdale’s

Pizza as a “kitchen manager.” (D.E. 22 4 25-27.) During the interview proccss,

Plaintiff was told that the kitchcn manager would be responsible for controlling and

Sanford, 191 F.R.D. 581, 583-85 (N.D. Tl], 2000). The Seventh Circuit teaches that a district
court has broad discretion to require strict compliance with L.R. 56.1. See, ¢.g., Koszola v. Bd. of
Ed. of City of Chicage, 385 F.3d 1104, 1109 (7th Cir. 2004); Curran v. Kwon, 153 F.3d 481, 486
(7th Cir. 1998) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir. 1995)
(collecting cases)). For this reason, the Court disregards the portion of D.E, 26 titled
“Defendant’s Reply to Plaintiffs Rule $6.1(b)(3)(A) Response to Each of The Numbered
Paragraphs of Defendant’s Statement of Material Facts,” as LR 56.1 docs not contemplate or
allow such a “reply.” See LR 56.1. However, under LR 56.1, where a party improperly denies a
statement of fact by failing to provide adequate or proper record support for the denial, the Court
deems admitted that statement of fact. See Malec, 191 F.R.D. at 584 (failure to adhere to L.R.
56.1 requirements, including citation to specific evidentiary materials justifying denial, is
equivalent to admission). This rule, for example, prompts the Court to disregard Mr.
Armintrout’s responses to Def. SF ff 20, 54, 74 and 80, which neither admit nor deny
Defendant's well-supported assertions. In response to various of Defendant’s numbered
statements of undisputed fact, Plaintift moves “to strike,” alleging that “[t]he citation to the
record is misleading and taken out of context and does not support the alleged material set forth .

..” See, e.g., Pl. Resp. to Def. SF 9] 33, 35. Similarly in Def. Resp. to Pl, SF, Defendant
variously moves to “strike Icgal conclusions” in certain numbered paragraphs. See, e.g.,D.E. 26
417, 8, 13. As these “motions” were not brought separately for consideration, the Court does not
rule on these “motions” individually. Instead, the Court will draw only trom the portions of
Def.’s SF. and PI.’s SF that are appropriate, and it will ignore any unsupported or improperly
supported statements of fact, as well as any improper legal conclusions. See, e.g, Malec, 191
F.R.D. at 583 (“{A] movant's 56.1(a) statement should contain only factual allegations. It is
inappropriate to allege legal conclusions”). In the same vein, to the extent the Court finds that
either party’s assertions of material fact are not supported by the cited materials, those assertions
are disregarded, See id. (“Factual allegations not properly supported by citation to the record are
nullities.”).

The Local Rule 56.1 framework does not allow a non-movant to allege new affirmative
facts in its response to the movant’s 56.1 statement, nor docs it require a district court to scour the
totality of the Rule 56.1 filings (including any statements of additional facts by the non-movant
that are simply referenced in the non-movant’s response to the movant’s 56.1 statement). See,
e.g, Malec, 191 F.RD, at 584 (citing Midwest Imports, 71 F.3d at 1317); accord, e.g., Watts v.
SBC Services, Inc., No, 05 C 3111, 2006 WI, 2224054, *I (N.D. Ill. July 31, 2006) (citation
omitted). Accordingly, the Court deems admitted properly supported statements of fact by the
movant where Plaintiff simply referenced in response alleged contradictory materials in its
statement of additional material facts. See, e.g, D.E. 22 49] 52, 95.

Finally, the Court notes that Plaintiff consistently disregards his duty to cile to the
respective statements of fact in his summary judgment response brief (D.E. 20), See Malec, 191
F.R.D. at 586; accord, e.g., Solaia Tech LLC y, Arvinmeritor, Inc., 36) F, Supp. 2d 797, 826-27
(N.D. Ill. 2005); Washington v. Int'l Survey Research LLC, No. 04 C 1450, 2005 WL 1162965,
*1 (NLD. II. May 16, 2005). Indeed, Plaintiff's response does not contain a single citation to the
statements of fact. This Court is not required to scour the voluminous Rule 56.1 filings to
determine whether Plaintiff's factual claims in his response brief are, in fact, well-taken. This
practice is materially improper.


Plaintiff's Dep. at 18.'*), In any event, Plaintiff either faced a reduced salary or

termination from his managerial role, which constitutes an adverse employment action.)
However, Plaintiff has failed to offer direct evidence that he was demoted because
he complained to LuBecky about “sexual harassment,” and therefore he has failed to
establish a prima facie case of retaliation under the direct method. “[D]irect evidence
‘essentially requires an admission by the decision-maker that his actions were based on
the prohibiled animus.” Hottenroth v. Village of Slinger, 388 F.3d 1015, 1028 (7th Cir.
2004) (quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000)). The
Seventh Circuit has explained that evidence of this sort is exemplified by statements such
as “I fired you because of your age.” Robin v. Espo Eng’ Corp., 200 V'.3d 1081, 1088
(7th Cir. 2000); see also Radue, 219 ¥.3d at 616 (teaching that such comments are “rarely
found”); Castleman v, Acme Boot Co,, 959 F.2d 1417, 1420 (7th Cir. 1992) (same).
Under the direct method, the Seventh Circuit also allows “circumstantial evidence to be
introduced which would allow ‘a jury to infer intentional discrimination by the
decision-maker.’” Hottenroth, 388 F.3d at 1028 (quoting Rogers v. City of Chicago, 320
F.3d 748, 753 (7th Cir. 2003)). Plaintiff has failed to identify any such evidence and the
Court’s review of the parties Rule 56.1 statements does not reveal any cither. As a result,
Plaintiff has failed to establish a prima facie case of retaliation under the direct method.
See Wyninger, 361 F.3d at 981 (affirming summary judgment where “[b]eyond suspicious
timing . . . there is tittle evidence in the record to indicate that her retaliation claim has any

merit. Thus, Wyninger cannot establish a retaliation claim through the direct method.”);

® During his employment preceding his job at the pizzeria, at “Nick and Tony’s” in Geneva,
Ilinois, Plaintiff worked as an executive chef for two weeks, but then received notice that he was
being demoted from a management position to that of a line cook. (D.E, 22 § 129; accord
Plaintiff's Dep. at 53-54.)

29


Constructors of HL, Inc., 163 \.3d 1027, 1032 (7th Cir. 1998), and citing Hall v. Bedine
Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002)). As explained below, the incidents of
which Plaintiff complains are not actionable because Plaintiff has not raised a genuine
issue of fact as to whether they were based on Plaintiff's gender. The facts indicate that
the individuals about whom Plaintiff complains did nat discriminate against him because
of his sex; in fact, these individuals engaged in identical and similarly lewd and
intolerable behavior towards female and male employees of Bloomingdale Pizza alike.

B. Claims Of Harassment By “Equal Opportunity” Harassers Arc Not

Actionable Under Title VII Because They Do Not Involve Discrimination
Based on Sex

The Seventh Circuit has taught that, “in the context of a sexual discrimination
charge based on a hostile work environment, ‘[t]he critical issue . . . is whether members
of one sex are exposed to disadvantageous terms or conditions of employment to which
members of the other sex are not exposed.” Berry v. Delta Airlines, Inc., 260 F.3d 803,
808 (7th Cir. 2001) (quoting Oncale, $23 U.S. at 80). Thus, “an employer cannot be held
liable for creating or condoning a hostile working environment unless the hostility is
motivated by gender.” /d. at 808, The facts here do not indicate that the reprehensible
and sexually-charged language and actions to which Plaintiff claims he was exposed
were motivated by gender and, as a result, Plaintiff’s claim fails.

Plaintiff claims that he personally was subjected to harassing behavior by Luis

and Antonio while employed at Bloomingdale Pizza. (D.F. 22 1] 35-36.) To be sure,

* Plaintiff objects to this statement of fact as “misleading and taken out of context.” (DE. 22 J
35.) The Court’s review of the record reveals that the statement is well-supported. As Plaintiff
has neither denied the statement nor offered any contrary evidence, the Court deems the statement
admitted. While both parties include in their LR 56.1 statements issues relating to interactions
between “Steve” and “Juan,” and Bloomingdale Pizza’s handling of such interactions, Plaintiff's
concession that he is only alleging harassment against him by Antonio and Luis, and Defendant’s
failure to raise any scrious challenge to the hostile nature of the work environment created by

13



Thus, Judge Crabb explained, Supreme Court teaching makes clear that “it is important

to remember that the term ‘sex’ from Title VII is a reference to the victim’s gender, not
to carnal matters.” fe, 122 F. Supp. 2d at 989 (discussing Oncale, supra).

In the wake of Oncale, the Seventh Circuit, of course, has applied its teaching; in
doing so, the Seventh Circuit has held that a so-called “equal opportunity” harasser is
outside the scope of Title VIL. See Holman, 211 £.3d at 403 (“Title VIJ does not cover
the ‘equal opportunity’... harasser . . . because such a person is not discriminating on
the basis of sex”) (collecting cases; emphasis in original); accord, ¢.g., Wyninger, 361
F.3d at 976 (“Wyninger cannot base a hostile environment claim upon Couch’s and
Wade’s vulgar language because, at most, they are ‘crude individual[s] who treated
[everyone] poorly.’ Other employees, including men, were also afraid of and offended
by Crouch’s . . . vulgarity and insulted by Wade’s approach to his supervisory role.
Crouch and Wade did not interact with Wyninger any differently than they did with other
male coworkers and subordinates.”) (internal citation omitted). As Holman therefore
explained, in sexual harassment cases, the “‘critical issue, Title VII's text indicates, is
whether members of ong sex are exposed to disadvantagcous terms or conditions of
employment fo which members of the opposite sex are not exposed.’ This inquiry applies
to both same and opposite-sex harassment.” Holman, 211 F.3d at 403 (emphasis in
original) (quoting Oncale, 523 U.S, at 80-81; internal and subsequent citations omitted).
Thus, “Title VII does not cover the ‘cqual opportunity’ or ‘bisexual’ harasser . . . because
such a person is not discriminating on the basis of sex. He is not treating one sex better
(or worse) than the other; he is treating both sexes the same (albeit badly).” /d., 211 F.3d

at 403 (emphasis in original; collecting Seventh Circuit precedents). Because Plaintiff

16