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Kovalevska v. Burlington Coat Factory of Indiana, LLC

United States District Court, S.D. Indiana, New Albany Division

June 19, 2018




         This matter is before the Court on a Motion for Summary Judgment filed by Defendants Burlington Coat Factory of Indiana, LLC (“Burlington”) and Burlington Coat Factory Direct Corporation (“BCFDC”)[1] (collectively, “Defendants”). (Filing No. 37.) Plaintiff Tatiana Kovalevska (“Kovalevska”) filed this action against the Defendants under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., (“Title VII”) alleging that she was subjected to a hostile work environment, on the basis of national origin, and constructively discharged. For the reasons set forth below, the Motion for Summary Judgment is granted.

         I. BACKGROUND

         The following facts are not necessarily objectively true, but as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to Kovalevska as the non-moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Pursuant to Local Rule 56-1(f)(1), the facts that Kovalevska assert are true, to the extent admissible evidence supports them.

         Burlington is an off-price retailer of clothing, coats, accessories, baby items and other soft goods that operated various stores throughout Indiana. It is also an equal opportunity employer and maintain s a policy against discrimination and harassment. Kovalevska is of Russian/Ukrainian descent, and she worked at a Burlington store, located in Clarksville, Indiana, from September 2014 until her constructive discharge on February 28, 2015. (Filing No. 1 at 2-3.) Kovalevska was employed at Burlington as a merchandising team associate. (Filing No. 38-1 at 7.) Wendy Carter (“Carter”) supervised the Receiving Department at Burlington. (See Filing No. 43-5 at 5.) Carter supervised on average ten employees including Kovalevska at the Clarksville Burlington. Id. at 3. As the supervisor on shift, Carter was also charged with scheduling breaks. Id. at 4. However, Carter did not have the authority to hire, fire, demote, promote, transfer or discipline Kovalevska or any other employees. (Filing No. 35 at 2).

         Much of Kovalevska's material facts come from the testimony of her daughter Erika Kovalevska (“Erika”), who was not employed at Burlington. (See Filing No. 43 at 1-3.) Erika testified to several observations of her mother during the time she worked at Burlington, including seeing her mom come home from work crying every day due to “being ‘very stressed out' from working there.” (Filing No. 43-4 at 5.) Specifically, Kovalevska informed Erika that Carter made her do a lot more work than other employees and that she was always separated from the African-American employees. Erika also testified that Kovalevska told her she was the only white person in her department, and that she was called a “dirty Russian” and “stupid Russian” as well as not given her breaks and having shortened lunches. (Filing No. 43-4 at 7-8, 15.) Erika advised her mother to report the conduct to Carter, and Erika also spoke with Carter. Id. at 2. Carter told Erika that the Christmas season was very busy and that she is making sure that everybody is receiving their breaks. (Filing No. 43-4 at 16.) However, Erika contends that after her meeting with Carter, Kovalevska continued to complain about not getting breaks. Id. at 16. Erika testified that as a result of the work stress, Kovalevska's blood pressure frequently elevated and that Kovalevska told her that “she could no longer handle it for her health.” Id. at 22.

         Kovalevska testified to the same conduct, as well as additional harassment from her co-workers. One incident involved Matthew Moore (“Moore”) with whom Kovalevska had frequent confrontations. Kovalevska contends Moore destroyed a display of merchandise that she had worked on throughout the day. (Filing No. 38-1 at 21.) After Kovalevska told Moore “to stop doing this” and he was not her boss, Moore started screaming and attempted to jump on her but Carter blocked him. Id. Carter ran and grabbed him and put him into a room to talk to him. Id. at 21-22. Moore also frequently cussed at Kovalevska directly, on a daily basis. See Id. at 22-23. Another co-worker Jessica Radford (“Radford”) also cussed at Kovalevska on a frequent basis. Id. at 23.

         During the deposition, after the lunch break, Kovalevska asked if she could bring up another incident regarding Moore calling her a “dirty Russian” a lot of times.

Q: Well, wait a minute. The first time I asked you about everything Matthew had said to you, you never told me that, right?
A. I told--- Q. You didn't tell me that, did you?
A. Because I concentrate for another one.
Q. Because what?
A. Concentrate for another one.
Q. But after a break-did you talk to your attorney at the break?
A. No.
Q. And I'm not asking about what you talked. Did you talk to your attorney at the break?
A. No, I talk-talking with my husband and I say he was going on and he said, “Why didn't you say-like, talk to you “dirty Russian” and, like, you stay beside-work beside the table, start laughing, and you say, “Why you guys laughing for me again?” And say-this Matthew say. He said-he said-and ...

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