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Berrios v. Marcus Hotels Inc.

United States District Court, E.D. Wisconsin

March 15, 2016




Plaintiffs walked off their jobs in the Housekeeping Department of the Madison Hilton on August 31, 2012. Six days later, defendant terminated their employment. Afterward, plaintiffs brought this action asserting that they were constructively discharged and retaliated against in violation of 42 U.S.C. § 1981 based on their race and national origin (Hispanic/Latina). As the case progressed, plaintiffs filed a motion for voluntary dismissal-with prejudice-“of all claims asserted under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.” (Doc. 22.) The motion was granted. Defendant has since moved for summary judgment on the constructive discharge claim, and any remaining retaliation claim. Because plaintiffs have not created a genuine issue of material fact with admissible evidence, defendant’s motion for summary judgment will be granted.

Summary judgment is proper where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). While all facts and reasonable inferences are to be construed in favor of the nonmoving party, South v. Ill. EPA, 495 F.3d 747, 751 (7th Cir. 2007), “[i]nferences that are supported by only speculation or conjecture will not defeat a summary judgment motion.” McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004).

Before turning to the court’s findings of fact, the court notes that the plaintiffs submitted numerous proposed findings of fact that have been rejected because they were not supported by evidence in the record. After thoroughly reviewing the parties’ submissions and citations to the record, the court found that plaintiffs failed to include evidentiary support for their proposed findings. For example, plaintiffs’ first proposed finding cites to pages 19-20 in Cindy Tejeda’s deposition transcript. However, pages 15-18, 27-34, 55-62, 67-74, and 79-82 were provided. The court even looked to defendant’s submissions to determine whether the relevant pages existed in the record but was not successful. In numerous instances, plaintiffs failed to include the evidence in the record or otherwise cited to deposition testimony that did not directly support the proposed finding. Therefore, on February 11, 2016, this court warned plaintiffs that it would not consider any proposed findings for which there was no evidentiary support and ordered that all supporting documents be filed on or before February 18, 2016. Yet plaintiffs did not comply. As a result, the court has only considered facts that are unopposed or supported by the record in accordance with Rules 56(c) and 56(e).


Defendant Marcus Hotels is comprised of a theater division and a hotel and resort division. The hotel and resort division operates 18 hotels and resorts nationally, including the Madison Hilton. (Doc. 18, ¶ 1.) Plaintiffs worked in the Housekeeping Department of the Madison Hilton. (Doc. 18, ¶¶ 2-6.)

Plaintiffs Elizabeth Berrios, Jacqueline Machado, and Cecilia Serra are of Mexican ancestry. (Doc. 18, ¶¶ 2, 3, 5.) Plaintiffs Lilian Paguada and Cindy Tejeda are of Honduran ancestry. (Doc. 18, ¶¶ 4, 6.) Berrios worked in the Housekeeping Department from March 18, 2009, to September 4, 2012; Machado worked from March 1, 2010, to September 4, 2012; and Sierra worked from 2006 to September 4, 2012. (Doc. 18, ¶¶ 2, 3, 5.) Paguada worked in the same department from May 1, 2009, to September 4, 2012, while Tejeda began on March 29, 2010. (Id.)

Throughout plaintiffs' employment, the Housekeeping Department of the Madison Hilton had 30 employees, 90% of whom were Hispanic. (Murray Aff. Ex. 2, Hinton Dep. 35, 68.) The managers of this department also were Hispanic. Abigail Vasquez, the Housekeeping Manager, and Ana Laura Resendiz, one of the Supervisors who reported to Vasquez, are of Mexican ancestry. (Murray Aff. Ex. 2, Hinton Dep. 36; Murray Aff. Ex. 9, Vasquez Dep. 4; Murray Aff. Ex. 6, Resendiz Dep. 30, 34.)

Each of the plaintiffs received copies of the Marcus Associate Handbook during their employment, which is available in English and Spanish. (Murray Aff. Exs. 16-17, 28-32.) At all relevant times, the Marcus Hotels Associate Handbook had a Harassment Free Workplace Policy which states:

Marcus Hotels & Resorts is committed to providing its associates with a work environment free from any form of harassment. In order to promote a respectful and professional workplace environment, Marcus Hotels & Resorts does not tolerate harassment of our associates on any basis prohibited by law, including race, color, gender, age, religion, national origin, sexual orientation, disability or military status.
Harassment can include such behavior as slurs, demeaning jokes or comments, innuendoes, unwelcome compliments, cartoons, pictures, e-mail, pranks, hazing, stereotypical comments, derogatory descriptions or other verbal or physical conduct. Such behavior is considered harassment when it has the purpose or effect of creating an intimidating, hostile, or offensive working environment, unreasonably interferes with an individual's work performance, or affects an individual's workplace opportunities.
Sexual harassment is a type of harassment that occurs when the verbal or physical conduct described above is sexual or gender-based in nature and creates an intimidating, offensive, or hostile work environment. Sexual harassment can also involve making unwelcome sexual advances or requests for sexual favors, or making submission to or rejection of such requests the basis for employment decisions.
Marcus Hotels & Resorts strongly encourages the prompt reporting of all incidents of harassment in the workplace. Any associate who witnesses harassment or believes that he or she has been the subject of unwelcome harassment whether by a manager, co-worker or other third-party such as a guest or vendor, is encouraged to identify the offensive behavior and request that it stop. If you are unable to address the matter directly with the harasser, or if you do and the behavior continues, please report the matter to one of the following individuals:
· Your Department Head
· Your Human Resources Department
· Your General Manager
· The Corporate Divisional Director of Human Resources at (414) 905-1000
· Marcus Confidential Line (877) 622-7536
All complaints will be investigated promptly, impartially, and discreetly. Upon completion of the investigation, the appropriate parties will be notified of the findings. If any associate is found by the company to have harassed another associate or retaliated against an associate for reporting a violation of this policy, appropriate corrective action will be taken. This could range from a disciplinary warning up to termination of employment.
No associate will suffer retaliation for reporting incidents that you believe in good faith to be violations of this policy. Marcus Hotels & Resorts considers retaliation to be a serious violation of this policy and urges you to report any incidents of retaliation immediately as you would any act of harassment. Marcus Hotels & Resorts will investigate and resolve reports of retaliation in the same manner as reports of harassment.
Associates and management must work together to prevent and stop harassing conduct in the workplace. We trust that Marcus Hotels & Resorts associates will act responsibly while at work, will treat each other with dignity and respect, and will work to maintain a workplace free of discrimination and harassment.

Additionally, the Associate Handbook includes an Equal Employment Opportunity Policy which states:

It is the policy of Marcus Hotels & Resorts to provide equal employment opportunity to all associates and applicants for employment and not to discriminate on the basis of race, color, gender, age, religion, national origin, sexual orientation, disability, military status, or any other status that is protected by applicable local, state or federal laws. It is our intent and desire that equal employment opportunities will be provided in employment, recruitment, selection, compensation, benefits, promotion, demotion, layoff, termination and all other terms and conditions of employment. All managerial personnel are committed to this policy and its enforcement.
Associates are directed to bring any violation of this policy to the immediate attention of their manager or the Human Resources Department. Any associate who violates this policy or knowingly retaliates against an associate reporting or complaining of a violation of this policy shall be subject to disciplinary action, up to and including termination. Complaints brought under this policy will be promptly investigated and handled with due respect of all involved.

(Doc. 18, ¶¶ 12, 13.)

Marcus Hotels' Associate Handbook includes an Open Door Policy which allows employees to raise concerns about their workplace with their Immediate Manager, Department Head, Executive Committee Member, Human Resources representative, General Manager, Vice President of Operations, or the President of the Division:

Marcus Hotels & Resorts believes that all of its associates have a right to voice problems, concerns, or suggestions they may have regarding their workplace. Every associate is encouraged to bring any question, complaint, concern or idea they may have to his or her manager. While the company may not be able to correct every problem or concern brought to its attention, it is our desire to listen to our associates and to respond appropriately to all legitimate concerns. By keeping our doors open to you, we hope to prevent issues or frustrations from diminishing your spirit for the job.
Most of the time an associate's immediate manager is the person best qualified to solve workplace issues. If you feel that an issue is not being addressed in an appropriate manner, we encourage you to contact the following individuals, in this order, to address your concerns:
· Immediate Manager
· Department Head
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