Jorge L. Colon v. Illinois Bell Telephone Company 2009 (Case 15.3)

The issue is whether a Hispanic worker was terminated because of his national origin or his insubordination.

GOTTSCHALL, UNITED STATES DISTRICT JUDGE.

While working at IBTC, Colon worked as a Sale and Service Representative-he answered phone calls from IBTC customers. At the location where Colon worked, Sale and Service Representatives Jorge L. Colon v. Illinois Bell Telephone Company d/b/a/SBC/Ameritech 2009 U.S. Dist. LEXIS 89570 (Northern District Court of Illinois, Eastern Div.) were split into two groups: the Bilingual Group and the English-Only Group. Colon is fluent in English and Spanish, and was assigned to the Bilingual Group. When Colon was originally hired, he handled calls from Spanish speakers only, and only from the state of Illinois. In 2003 Colon started being required to answer questions from callers who spoke either English or Spanish, and who resided in Illinois or in other states. These changes were not unique to Colon; Colon worked in the Bilingual Group, and these changes applied to all members of that group. In contrast, and as its label suggests, the English-Only Group answered calls only in English, and any member of that group would answer calls from one state only. From this, Colon contends that he and other members of the Bilingual Group had to work harder than the English-Only Group because they had to (1) answer calls in multiple languages, and (2) answer calls from multiple jurisdictions. This latter point is relevant because different states have different service plans, rules, notices, and regulations which may need to be relayed to the customer; Colon was required to answer calls from both Illinois and Ohio, but each required specific knowledge and training. However, and pursuant to a collective bargaining agreement a Sales and Service Representative is paid the same irregardless of the group to which she is

pay variation, based on factors such as years of employment). assigned; Colon was paid the same as an English-Only Group employee (though there was some Colon performed his job adequately for approximately nine months starting in January 2005, except for the attendance problems noted above. During this time, Colon contends that he received calls only from Illinois customers and did not have to answer any calls from other states; the reason for this-whether it was an intentional act by IBTC or whether it was just a random eventis unclear from the record. At some point in later September or early October 2005, however, Colon received a call from a customer in Ohio. He did not answer this caller's question, but instead returned the caller to the "queue," requiring that it be answered by another Sale and Service Representative. Colon had previously been trained to handle calls from Ohio, but maintains that he was uncomfortable responding to calls from Ohio at that time. Colon does not provide an explicit reason, but the inference suggested is that he was no longer familiar with the rules specific to answering calls from Ohio. A meeting was held on October 7, 2005 regarding Colon's failure to answer calls from Ohio. Representatives from IBTC, from the union, and Colon were in attendance. The parties dispute precisely what was said at the meeting, but there is no dispute that Colon stated he did not believe it was fair that the Bilingual Group had to answer calls from multiple states without the benefit of additional compensation; and that he felt he could not properly answer Ohio calls because he had not received Ohio calls for some time. At that meeting, all agreed that Colon would receive refresher training on how to handle calls from Ohio, and would handle them in the future. The union representative also stressed that Colon was obligated to answer calls from Ohio.2.2012 The refresher training was to occur on October 12, 2005, but on that date Colon refused to take the training, claiming that he was waiting to hear back from his union representative. Colon was placed on unpaid suspension for insubordination on the same day he refused to take the refresher training. He was terminated on October 28, 2005, for the stated reason of insubordina- tion. Regarding the allegation of retaliation he cites the following facts: First, he wrote an "open letter" in 2004 arguing that the Bilingual Group was not being treated fairly and that it should either be paid more or be given work terms equal to those of the English-Only Group. This letter was circulated among co-workers and was sent to the union, though it was not directly sent to IBTC management. Second, during meetings in October 2005 regarding Colon's failure to an swer the call from Ohio, Colon expressed directly to IBTC management that the Bilingual Group was not being treated fairly. Third, Colon stated in his deposition that his union representative warned him a month before he was terminated that he was "making things hard" for himself by out about the injustices he perceived the Bilingual Group was suffering. Lot speaking

the same number of hours. He was still obligated to speak in a language in which he was fluent, Colon contends that he suffered discrimination on the basis of his national origin because of the changes in policy at IBTC in 2003 regarding the duties and obligations of the Bilingual Group. The record is silent regarding the national origin of the members of the Bilingual and English-Only Groups, and neither party had addressed this issue. The court will assume for the purposes of this order that the Bilingual Group is exclusively Hispanic and the English-Only Group is exclusively non-Hispanic, which could give rise to an assumption that discrimination on the basis of bilingual ability is a pretext for discrimination on the basis of national origin. Title VII requires that the employee suffer a materially adverse employment action, re- gardless of whether the individual is proceeding under the direct or indirect method of proof. Colon suffered no materially adverse employment action by virtue of the treatment of the Bilingual Group. At worst, he was required to answer calls in multiple languages (as opposed to just one language as in the English-Only Group) and answer calls from multiple states (as op- posed to just one state as in the English-Only Group). Colon admits that he was not required to work additional hours, and he admits that IBTC would (and did) provide training so that he would be able to answer calls from the states for which he was responsible. Unquestionably Colon's job was more challenging than was the job of a Sales and Service Representative in the English Only Group, but the additional obligations placed upon Colon are not sufficient, either or qualitative(ly)," to qualify as a materially adverse employment action. A ma- terially adverse change must be more than an "inconvenience or a change in job responsibilities"; the change must "significantly alter the terms and conditions of the employee's job." Harder sare insufficient. After the 2003 change in policy, the core aspects of Colon's job here the same: he was still obligated to answer calls in the order received. He was still working questions for which he had received adequate training. Every adverse change in "quantitative(ly] work assignments and to answeremployment is not necessarily materially adverse under Title VII, and the facts here fall short of establishing a materially adverse action.

IBTC's motion for summary judgment on Colon's Title VII discrimination claim is granted.

Case Commentary

The Northern District Court of Illinois, Eastern Division, reasoned that a change of responsibili- ties alone is not indicative of discrimination.

Case Questions

1. Do you agree with the reasoning of the court?

2. Is it ethical that the bilingual workers were not paid an additional sum for their extra responsibilities?

3. Is speaking with bilingual customers truly extra work?