King v. Schieferrdecker et al
Filing
135
OPINION entered by Judge Sue E. Myerscough on 8/1/2011. The Department Defendants' Motion for Summary Judgment (d/e 107) is GRANTED. The Department's Motion for Summary Judgment on Count I of the First Amended Complaint is GRANTED. The I ndividual Defendants' Motion for Summary Judgment on Counts III and VI is GRANTED. Summary judgment is GRANTED in favor of the Defendants Gregg Scott, Tarry Williams, and Chris Clayton on Count V of the First Amended Complaint; and the claims asserted against Defendants Chris Clayton and Darrell Sanders in Count VII of the First Amended Complaint are DISMISSED for lack of subject matter jurisdiction. (MAS, ilcd)
E-FILED
Monday, 01 August, 2011 05:08:51 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JERMAIN KING,
)
)
Plaintiff,
)
)
v.
)
)
SHERIFF OF SCHUYLER COUNTY )
DON L. SCHIEFERDECKER, et al., )
)
Defendants.
)
No. 08-3213
OPINION
SUE E. MYERSCOUGH, U.S District Judge.
This cause is before the Court on the Motion for Summary
Judgment (d/e 107) filed by the following Defendants: (1) Illinois
Department of Human Services (Department); (2) Tanya Clairmont1, a
Security Therapy Aide II; (3) Chris Clayton, an Internal Security
Investigator; (4) Joe Dorsey, a Security Therapy Aide IV; (5) Joe
Hankins, a Public Service Administrator and Shift Commander; (6)
Sandra Hays, a Security Therapy Aide IV; (7) Michael Howard, a
Tanya Clairmont is now known as Tanya Pool, but this Court will continue to
refer to her as Clairmont.
1
Security Therapy Aide; (8) David Jacobsen, a Security Therapy Aide; (9)
John Jeslis, a Security Therapy Aide II; (10) Dave Kunkel , a Security
Therapy Aide IV; (11) David Kurfman, a former Security Therapy Aide;
(12) Eugene McAdory, Chief of Security (since November 2007) and a
Public Service Administrator VI, Shift Commander (May 2006 to
November 2007); (13) Darrell Sanders, Chief of Security (until
November 2007); (14) Gregg Scott, Security Therapy Aide II (from
October 2006 to March 2007) and a Security Therapy Aide IV (from
March 2007 to March 2011); (15) Janie Volk2, a Public Service
Administrator, Shift Commander; and (16) Tarry Williams, Security
Therapy Aide IV; (the Individual Defendants) (all collectively referred to
as the Department Defendants). For the reasons that follow, the
Department Defendants’ Motion for Summary Judgment is GRANTED
IN PART AND DENIED IN PART.
I. OVERVIEW
In July 2008, Plaintiff filed a Complaint against the Department
Plaintiff sued Volk as “Colette Volk” but the documents in the record
identify her as Janie Volk, as does her own affidavit.
2
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Defendants, as well as additional defendants3, in the Northern District
of Illinois. In September 2008, the case was transferred to this district.
In May 2009, Plaintiff, pro se4, filed a Verified First Amended
Complaint (Amended Complaint). Plaintiff, an African American male,
worked for the Department at its Rushville Treatment and Detention
Facility (Facility). The Facility is a secure facility housing convicted
felons who have been released from prison but have been determined by
a court to be sexually violent persons.
Plaintiff alleged that he spoke out about the disparity in treatment
of African American staff by the Department and filed two complaints
Plaintiff also brought claims against Don L Schieferrdecker, the Sheriff of
Schuyler County; Deputy Sheriff Thomas Kanoski (the Schuyler County
Defendants); as well as additional Department employees, Facility Director Larry
Philips, Assistant Facility Director Brian Thomas, Facility Director Thomas Monahan
and Director of Forensics Anderson Freeman. In September 2009, the Court
dismissed the claims against Philips, Thomas, Monahan, and Freeman. In July 2011,
this Court granted summary judgment in favor of the Schuyler County Defendants
on Count IV. Count VIII, a § 1983 municipal liability “Monell” claim brought
against Sheriff Schieferdecker relating to the allegedly illegal strip search, remains.
See Monell v. Department of Social Services of City of New York, 436 U.S. 658,
694 (1978) (a local government is responsible under § 1983 “when execution of a
government’s policy or custom . . . inflicts the injury that the government as an entity
is responsible”).
3
4
Plaintiff was represented by counsel until January 2009.
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with the Bureau of Civil Affairs (BCA). According to Plaintiff, the BCA
is the internal investigation agency that investigates corruption and
discrimination within state facilities.
Plaintiff alleged the Department Defendants retaliated against
him in various ways, ultimately leading to his wrongful discharge.
Plaintiff also alleged that certain Department employees falsely reported
to the Schuyler County Sheriff’s Office that Plaintiff was bringing drugs
into the Facility. According to Plaintiff, the Schuyler County Sheriff and
the Deputy Sheriff arrested Plaintiff on an outstanding warrant and
subjected him to a full body strip search.
Defendants filed a motion to dismiss. Following the Court’s
September 2009 Opinion, the following claims remained against the
Department Defendants: (1) Count I, a retaliation claim against the
Department under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-3; (2) Count III, a § 1983 claim against the Individual Defendants
for retaliating against Plaintiff for exercising his First Amendment rights
when he spoke out about the treatment of African American employees
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at the Facility; (3) Count V, a § 1983 claim against Defendants Scott,
Clayton, and Williams for violating Plaintiff’s right to equal protection
under the Fourteenth Amendment; (4) Count VI, a state law claim
against the Individual Defendants for intentional infliction of emotional
distress; and (5) Count VII, a state law claim for gross negligence against
Defendants Clayton and Sanders.
In April 2011, the Department Defendants filed a Motion for
Summary Judgment. In May 2011, Plaintiff filed a memorandum in
response. No reply memorandum was filed.
II. JURISDICTION AND VENUE
This Court has subject matter jurisdiction because Plaintiff asserted
claims based on federal law. See 28 U.S.C. § 1331 (“The district courts
shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States”). Venue is proper
because the events giving rise to the claim occurred in Schuyler County,
Illinois. See 28 U.S.C. § 1391(b) (a civil action where jurisdiction is not
founded solely on diversity of citizenship may be brought in a judicial
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district where a substantial part of the events or omissions giving rise to
the claim occurred).
III. LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also,
Fed.R.Civ.P. 56(c). A moving party must show that no reasonable factfinder could return a verdict for the non-moving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Gleason v. Mesirow Fin.,
Inc., 118 F.3d 1134, 1139 (7th Cir. 1997).
The movant bears the burden of establishing that there is no
genuine issue of material fact. Celotex Corp, 477 U.S. at 323. If the
movant meets this burden, the non-movant must set forth specific facts
demonstrating that there is a genuine issue for trial. Fed.R.Civ.P. 56(e);
Anderson, 477 U.S. at 252.
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In deciding a motion for summary judgment, a court can only
consider sworn statements based on personal knowledge and other
evidence that would be admissible at trial under the Federal Rules of
Evidence. Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 301
F.3d 610, 613 (7th Cir. 2002). The evidence is viewed in the light most
favorable to the non-movant and “all justifiable inferences are to be
drawn in his favor.” Anderson, 477 U.S. at 255.
Summary judgment is inappropriate when alternate inferences can
be drawn from the evidence, as the choice between reasonable inferences
from facts is a jury function. Id. However, conclusory allegations do not
create issues of fact which forestall summary judgment. See Sublett v.
John Wiley & Sons, Inc., 463 F.3d 731, 740 (7th Cir. 2006) (“it is . . .
axiomatic that a plaintiff’s conclusory statements do not create an issue
of fact”).
IV. FACTS PERTAINING TO THE MOTION
FOR SUMMARY JUDGMENT
A.
Plaintiff’s Objections to the Statement of Undisputed Facts
In April 2011, the Department Defendants filed a Statement of
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Undisputed Facts in support of the Motion for Summary Judgment. In
May 2011, Plaintiff filed a response to the Motion for Summary
Judgment and a response to the Statement of Undisputed Facts. Despite
seeking and obtaining an extension of time to file a reply to Plaintiff’s
Response to the Statement of Undisputed Facts, the Department
Defendants have not done so.
In his response to the Statement of Undisputed Facts, Plaintiff
objects to a number of the “undisputed facts.” One of the objections is
that the cited source of the facts was not an affidavit as required by 28
U.S.C. § 1746. However, on May 18, 2011, this Court entered a text
order denying Plaintiff’s motion to strike the affidavits on this basis.
Therefore, this objection is overruled.
Plaintiff also objects to numerous facts on the basis that the cited
source is not an affidavit as required by Federal Rule of Civil Procedure
56. Rule 56(c)(4) requires that all affidavits “used to support or oppose a
motion for summary judgment must be made on personal knowledge, set
out facts that would be admissible in evidence, and show that the
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affidavit or declarant is competent to testify on the matter stated.”
Fed.R.Civ.P. 56(c)(4); see also Luster v. Illinois Department of
Corrections,
F.3d
n.2, 2011 WL 2857262 (7th Cir. 2011). In
examining the affidavits, this Court will only consider the facts contained
in the affidavits that comply with Rule 56(c)(4).
Plaintiff objects to statements of fact that cite the two documents
attached to the Motion, including an Employee Discipline Log (Exhibit
A), and an April 26, 2007, Memorandum (Exhibit B). These documents
have not been authenticated in any way. Therefore, the Court will not
consider them.
Plaintiff also objects to the documents attached to the Individual
Defendant’s affidavits. Those documents include: (1) incident reports,
(2) disciplinary records; (3) pre-disciplinary meeting results; (4) and a
Division of Internal Affairs investigation report prepared by Defendant
Clayton. Plaintiff asserts that the documents do not qualify as business
records under Federal Rule of Evidence 803(6).
A court may only consider admissible evidence when assessing a
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motion for summary judgment. Gunville v. Walker, 583 F.3d 979, 985
(7th Cir. 2009). The documents to which Plaintiff objects are admissible
for a number of reasons.
First, the documents, with the exception of the Investigation
Report, constitute business records. Federal Rule of Evidence 803(6)
provides an exception–commonly referred to as the business records
exception–to the hearsay rule for records of regularly conducted activity.
See Collins v. Kibort, 143 F.3d 331, 337 (7th Cir. 1998). Documents
are admissible as a business record if the party attempting to admit the
evidence demonstrates that the document was “kept in the course of
regularly conducted business activity, and [that it] was the regular
practice of that business activity to make records, as shown by the
testimony of the custodian or otherwise qualified witness.” Id. (internal
quotation marks and brackets omitted.) The witness establishing the
foundation need not have personal knowledge of the entries in the
records or be the person who prepared the documents. Alexian Brothers
Health Providers Ass’n, Inc. v. Humana Health Plan, Inc., 608 F.Supp.2d
Page 10 of 58
1018, 1023 (N.D. Ill. 2009). The witness need only have “‘knowledge
of the procedure under which the records were created.” Collins, 143
F.3d at 338.
With the exception of the Investigation Report, the affiants
authenticating the remaining documents testified that those documents
were true and accurate copies and were kept in the course of regularly
conducted business activity. The affiants also provided statements from
which it can be inferred that it was the regular practice of the
Department to make those records. Therefore, the incident reports,
disciplinary records, and presdisciplinary meeting results are admissible.
In addition, all the documents–including the Investigation Report–
are admissible to the extent they are not considered for the truth of the
matter asserted therein but rather to support the Department
Defendants’ assertion that they acted in good faith and were not
motivated by an improper purpose. See Traum v. Equitable Life
Assurance Society of U.S., 240 F.Supp.2d 776, 781 (N.D. Ill. 2002)
(personnel file was admissible to the extent the file was “cited to show
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what information was before defendants or that defendants took certain
action as to the claim”); Lee v. Anthony Wayne Services, 2005 WL
1459440, *3 (N.D. Ind. 2005) (“Documents are also not hearsay where
they are not tendered to prove the particulars of their contents but to
help establish that the defendant was motivated, in good faith, to
discharge the plaintiff for reasons other than her sex, race, or disability”).
Therefore, Plaintiff’s objections to the admissibility of the documents
attached to the affidavits, for purposes of summary judgment, are
overruled.
B.
The Relevant Facts
The following facts are taken from the Department Defendants’
Statement of Undisputed Facts, Plaintiff’s deposition, and Plaintiff’s
Affidavit, which was a part of his Amended Complaint.
In January 2005, Plaintiff was hired as a Security Therapy Aide in
Training and then a Security Therapy Aide I at the Joliet Treatment
Detention Facility. In March 2006, Plaintiff learned that the Sexually
Violent Person’s Treatment and Detention Center would be moved to
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Rushville, Illinois. In May 2006, Plaintiff relocated to Rushville to work
at the Facility.
According to Plaintiff’s Affidavit, after relocating to Rushville,
Plaintiff began to speak out about the disparity of treatment between the
African American staff and the Caucasian staff and submitted several
written complaints to Defendant Sanders, two other individuals who are
not defendants, and the BCA. Plaintiff filed complaints to the BCA in
January 2007 and June 2007.
Plaintiff alleged he suffered retaliation as evidenced by certain
actions of the Department Defendants. A summary of these events
follows.
1.
June 2006 Denial of Promotion
Plaintiff claimed he was denied a promotion to the Security
Therapy Aide II position in June 2006 because of his race. He admitted
at his deposition, however, that the promotions were automatic step
promotions by Central Management Services (CMS), unless the person’s
disciplinary record was reviewed and it was recommended he not get the
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job. Plaintiff further admitted that the only Caucasians promoted ahead
of Plaintiff had greater seniority than Plaintiff.
2.
September 16, 2006, Incident5
On September 16, 2006, Defendant McAdory wrote an incident
report asserting that Plaintiff abandoned his post. Plaintiff was afforded
a predisciplinary meeting at which he was allowed to rebut the charge.
Defendant Volk, the hearing officer, found the charges
substantiated and recommended a seven-day suspension. Defendant
Sanders concurred with the recommendation. At his deposition, Plaintiff
testified he believed Defendants Volk and Sanders engaged in making
false reports against him.
3.
Actions Relating to Plaintiff’s Fall 2006 Promotion
In the Fall of 2006, Plaintiff was promoted to a Security Therapy
Aide II due to his seniority. Plaintiff testified he did not receive the
uniform and “chevrons” that would denote he was promoted. He also
claimed he did not receive greater responsibility. According to Plaintiff’s
The record refers to this incident by two dates: September 9, 2006, and
September 16, 2006.
5
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deposition testimony, Defendant McAdory was responsible for making
sure that Plaintiff got his uniform, but Plaintiff admitted McAdory did
not know Plaintiff did not get his uniform.
Defendant Dorsey evaluated Plaintiff. In his affidavit, Defendant
Dorsey refers to the evaluation as a December 2006 evaluation.
However, the evaluation document to which he refers (Exhibit 8 of
Plaintiff’s Amended Complaint) is dated February 2007. In his affidavit,
Dorsey stated he rated Plaintiff as “meeting expectations” in four
categories but that he “needed improvement” in the remaining six
categories. Dorsey explained his ratings were because of Plaintiff’s
disciplinary suspensions, issues with uniform compliance, and failing to
be on time for shift briefings. In February 2007, Dorsey recommended
Plaintiff be demoted. Plaintiff was demoted to Security Therapy Aide I,
but the record is unclear when this occurred.
4.
Counseling for Misuse of Sick Time
In either October 2006 or September 2007, Defendant Volk
counseled Plaintiff for misusing sick time. Plaintiff denied that he
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misused sick time.
5.
November 11, 2006, Incident
Defendant Dorsey submitted an incident report asserting that
Plaintiff was found asleep on post on November 11, 2006. Plaintiff was
afforded a predisciplinary meeting at which he was allowed to rebut the
charge. The evidence supporting the charge included a camera review
report.
Defendant Volk, the hearing officer, found the charges
substantiated and recommended a 15-day suspension. Defendant
Sanders concurred with the recommendation. In his deposition, Plaintiff
admitted that he did not know of any Caucasians accused of sleeping on
duty who were treated better than Plaintiff.
6.
November 24, 2006, Incident
In November 2006, Defendant Jeslis submitted an incident report
asserting that Plaintiff violated his perimeter duty on November 24,
2006. According to the Department Defendants, Plaintiff stayed in the
Sally Port for nearly four hours and did not do his perimeter patrol. The
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first report prepared by Jeslis could not be found, and Defendant Volk
told Defendant Jeslis to write another one. Defendant Jeslis was
suspended for three days for failing to file a timely report.
Plaintiff testified that Defendant Jeslis submitted a false report.
Plaintiff testified he believed Defendant Jeslis’ actions were because of
Plaintiff’s race or for retaliation because the day before Plaintiff’s
incident, Jeslis allowed a white employee–Security Therapy Aide Drennan
(no first name given)–to sit in the control room when it was cold outside.
Drennan was not disciplined. In his own affidavit, Defendant Jeslis
explained that Drennan was allowed to sit in the control room not
because it was cold, but because Jeslis was providing him training.
Plaintiff was afforded a predisciplinary meeting, at which he was
allowed to give rebuttal. Defendant Volk, the hearing officer, found the
charges substantiated and recommended a 14-day suspension.
Defendant Sanders concurred with the recommendation.
7.
December 24, 2006, Incident
On December 24, 2006, Plaintiff was accused of being asleep on
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duty. The charge was ultimately reduced to not being alert on duty.
Plaintiff was afforded a predisciplinary hearing. Plaintiff did not
attend the hearing, but a union representative was present on Plaintiff’s
behalf. Defendant Volk, the hearing officer, found the charge of not
being alert on duty substantiated and recommended a 30-day suspension
pending discharge. Defendant Sanders concurred with the
recommendation.
Any discipline over a 30-day suspension must be approved by the
Facility Director and CMS. At some point, Plaintiff’s discipline was
reduced to a 30-day suspension without discharge.
Plaintiff testified he believed the discipline was based on his race
because other individuals had not been alert on duty and nothing was
done. Plaintiff admitted, however, that he did not know of any
Caucasians treated better with the same allegations.
8.
January 2007 Grievance Meeting and Filing of BCA
Complaint
On January 18, 2007, Plaintiff attended a discrimination grievance
meeting with Freeman, Monohan, Thomas, Defendant McAdory, and
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Defendant Sanders. On January 19, 2007, Plaintiff submitted a formal
complaint with the BCA.
In his deposition, Plaintiff stated the BCA complaint was based on
racial disparity and named Defendants Clayton, Dorsey, Hankins, Jeslis,
Kunkel, Kurtman, McAdory, Sanders, Scott, Williams, and Volk.
9.
April 25, 2007, Oral Reprimand
On April 25, 2007, Plaintiff received an oral reprimand for allegedly
returning back to his duty station late from a scheduled lunch break.
10.
June 2007 BCA Complaint
Plaintiff testified he submitted a second complaint to the BCA in
June 2007. Plaintiff based the second complaint on retaliation he
suffered after he filed the filing of the first complaint.
11.
The November and December 2007 Investigation Issues
Plaintiff testified that in approximately November 2007, he was
placed on another unit. Two residents in that unit informed him of a
plot by Clayton. Plaintiff stated that Scott, Williams, and Clayton
attempted to persuade residents of the Facility to get Plaintiff to commit
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unlawful acts. To support that statement, Plaintiff attached to his
Amended Complaint letters from two Facility residents. These letters,
however, are not sworn or otherwise admissible under 28 U.S.C. § 1746
(affidavits may be executed without oath of given under penalty of
perjury); As such, the letters are not competent evidence and are not
admissible on summary judgment. See, e.g., Mays v. Rhodes, 255 F.3d
644, 648 (8th Cir. 2001) (unsigned, handwritten account was
inadmissible hearsay).
On December 4, 2007, the vehicle Plaintiff was riding in to work
was pulled over by the Sheriff’s Department. Plaintiff was arrested on an
outstanding warrant. Plaintiff testified that he learned during the course
of this case that Defendant Clayton was the individual who telephoned
the Sheriff’s Office.
Plaintiff testified that he believed he was subjected to these actions
(the plot and the arrest) because of his race and in retaliation for his
complaints. He testified that a Caucasian employee was allowed to resign
after bringing cigarettes into the Facility and was not subjected to an
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investigation. Plaintiff testified he believed Williams and Scott were
involved with Clayton in trying to set up Plaintiff. Plaintiff also believed
that McAdory retaliated against him by letting Clayton–the individual
Plaintiff believed was trying to set him up–investigate Plaintiff’s incident
report alleging that residents were being used to try to get Plaintiff to
bring drugs into the Facility.
12. Incidents that Resulted in Discharge
The February 4, 2008, February 7, 2008, and March 6, 2008,
incidents were ultimately considered together and resulted in a 30-day
suspension pending discharge.
a. February 4, 2008, Incident
On February 4, 2008, Plaintiff called the Facility and requested a
“work-away” day because he had a meeting with BCA in Chicago. A
work-away day is used when an employee is going to be on State business
at a facility other than the employee’s regular work site.
Plaintiff testified that he also requested he be permitted to take a
personal day if his request for a work-away day was denied. Plaintiff
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spoke to Defendant Scott at approximately 9:20 a.m. Plaintiff was
scheduled to work at 3:00 p.m.
Defendant Scott wrote an incident report because work-away days
are supposed to be requested and approved “well in advance of the day
the employee is scheduled to work.” Plaintiff admitted his conduct
violated the administrative and facility directives.
Plaintiff was afforded a predisciplinary meeting and allowed to
rebut the charge. Following the predisciplinary meeting, Defendant
Hankins found the charges of providing false information, violation of
work-away procedures, conduct unbecoming, and unauthorized absence
substantiated based on evidence that (1) Plaintiff did not have an
appointment with the BCA; (2) although Plaintiff went to the BCA, he
left by 9:00 a.m. but claimed to have been at the BCA office when he
called the Facility; (3) he did not provide a time-off slip or proof of the
meeting; and (4) he did not following the proper procedures by
scheduling the meeting in advance or receiving approval from his
supervisor. Defendant Hankins, the hearing officer, found the charges
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substantiated.
b. February 7, 2008, Incident
On February 7, 2008, Defendant Kunkel filed an incident report
asserting that Plaintiff was insolent and insubordinate when Plaintiff
questioned Kunkel about Kunkel’s discipline and criticism of two African
American female supervisors in Plaintiff’s presence, contrary to policy.
Plaintiff was afforded a predisciplinary hearing and allowed to rebut
the charges. Defendant Hankins, the hearing officer, found the charges
substantiated.
c. March 6, 2008, Incident
On March 6, 2008, Plaintiff admittedly failed to report for an
overtime shift. Defendant Clairmont wrote the incident report. Plaintiff
alleged Defendant Clairmont and Defendant Hays discriminated against
him regarding this incident because Plaintiff believed other people should
have been written up–but were not– and Clairmont and Hays would be
the ones who would have written up the others. Plaintiff also testified
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the call log would reflect a number of Caucasians who did not come in for
shifts but were not disciplined. He admitted, however, he did not have
the names of any Caucasians who did the exact same thing and did not
get disciplined.
Plaintiff was afforded a predisciplinary hearing but did not attend
because he did not believe he could come onto the grounds. Defendant
Hankins, the hearing officer, found the charge substantiated.
13. April 15, 2008, Termination
Defendant Hankins, as the hearing officer, recommended that the
discipline for the three incidents be a 30-day suspension pending
discharge. On April 15, 2008, Plaintiff was terminated based on the
February 4, February 7, and March 6, 2008, incidents.
14.
Other Incidents
Plaintiff also complained of additional incidents. Plaintiff testified
that on one occasions (no date given), Hankins made a racial reference to
African Americans. Specifically, Plaintiff testified Hankins said, “I didn’t
now that important phone calls came from taxicabs” in reference to
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Facility employee Robert Ewa, an African from Nigeria. Ewa also ran a
taxi cab company that employed a lots of immigrants from Africa.
Plaintiff also testified about information he received from a
Department employee named Sally Hoges, purportedly involving
Hankins’ refusal to file an incident report that did not contain Plaintiff’s
name. Plaintiff provides no competent evidence, such as an affidavit of
Hoges indicating what Hoges told him.
Regarding similarly situated employees, Plaintiff testified that he
believed Hankins treated Caucasian employee, Security Therapy Aide
Goddard (no other information provided), better. According to Plaintiff,
Goddard was allowed to leave the unit and spy on Plaintiff, and got into
a fight outside of the facility and did not receive discipline for it.
Plaintiff also testified he did not know what discipline Goddard had
received, except that Goddard was brought up on charges by an African
American woman and he was not fired. Plaintiff admitted he had no
evidence that Hankins was Goddard’s hearing officer.
Plaintiff also testified that a Caucasian male who brought cigarettes
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into the facility was allowed to resign. According to Plaintiff, that
Caucasian male was not subjected to the an investigation and the police
were not called.
Plaintiff also testified that Defendant Kurfman told Plaintiff that
Plaintiff was right about African Americans being mistreated at the
facility and that he, Kurfman, had sent a few people “over there after
Plaintiff.”
15.
Plaintiff’s Testimony Regarding Damages for Intentional
Infliction of Emotional Distress Claim
When asked what emotional distress he suffered as a result of the
alleged conduct by the Department Defendants, Plaintiff testified he was
blind. Plaintiff explained that he suffered from cataracts before his
termination. Following his termination, he was unable to go to a
physician because he had no insurance. The doctors never told him he
had cataracts due to “what’s been going on at work.” Plaintiff has never
received “any other diagnoses related to what happened here at
Rushville.”
V. ANALYSIS
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A. Count I: Title VII Claim Against the Department
In Count I, Plaintiff alleged the Department retaliated against him
for speaking out about discrimination within the facility and because of
his race. In his deposition, Plaintiff agreed that his retaliation claim was
that “everything that happened to [him] after [he] filed that first Bureau
of Civil Affairs [complaint] was because [he] filed that.”
Although Count I is only entitled a retaliation claim, Defendants’ Motion
treats some of Plaintiff’s claims as discrimination claims. See Hall v.
Nalco Co. , 534 F.3d 644, 649 n. 3 (7th Cir. 2008) (explaining that the
complaint need not specify the legal theory on which the claim rests;
summary judgment is inappropriate where a claim may be cognizable).
Title VII prohibits employers from treating an employee differently
on the basis of certain characteristics, including the employee’s race. See
42 U.S.C. § 2000e-2(a)(1). In addition, Title VII prohibits an employer
from retaliating against an employee who has complained of unlawful
practices. See 42 U.S.C. §2000e-3(a). Title VII permits “suits against
employers, but not managers, directors, or other employees.” Douglas v.
Page 27 of 58
Quinn, 2010 WL 5161010, *3 (C.D. Ill. 2010), citing Williams v.
Banning, 72 F.3d 552, 553-54 (7th Cir. 1995). To survive summary
judgment, a plaintiff must demonstrate discrimination in one of two
ways: the direct method or the burden-shifting indirect method. Gettis
v. Illinois Dept. of Transp., 2011 WL 1232817, *4 (S.D. Ill. 2011).
1. Plaintiff’s Race Discrimination Claim
To defeat summary judgment under the direct method, a plaintiff
bringing a race discrimination claim must “present direct or
circumstantial evidence that creates a ‘convincing mosaic of
discrimination’ on the basis of race.” Winsley v. Cook County, 563 F.3d
598, 604 (7th Cir. 2009), quoting Troupe v. May Dep’t Stores Co., 20
F.3d 734, 737 (7th Cir. 1994). That circumstantial evidence “must point
directly to a discriminatory reason for the employer's action” (Adams v.
Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003)) and be
“directly related to the employment decision.” Venturelli v. ARC
Community Services, Inc., 350 F.3d 592, 602 (7th Cir. 2003) (quotation
omitted).
Page 28 of 58
Here, Plaintiff has not identified any evidence of a link between the
Department’s actions and Plaintiff’s race. Even though Plaintiff is pro se,
this Court is not required to “‘scour the record looking for factual
disputes.’” Greer v. Board of Education of City of Chicago, 267 F.3d
723, 727 (7th Cir. 2001), quoting Waldridge v. American Hoechst Corp.,
24 F.3d 918, 921-22 (7th Cir. 1993).
Even examining the evidence in the record, the admissible evidence
does not suggest that Plaintiff has direct or circumstantial evidence that
the Department’s actions were based on Plaintiff’s race. Essentially,
Plaintiff relies on his own belief that the Department discriminated
against him on the basis of race. His own speculation is insufficient to
establish a link between protected class or activity and the Department’s
treatment of him. See Winsley, 563 F.3d at 605 (finding that the
plaintiff’s own assertions that the County mistreated her on the basis of
her race was insufficient to establish a link between her race and the
County’s treatment of her).
Nor does Plaintiff fare any better under the indirect method.
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Under the indirect method, a plaintiff must establish a prima facie case of
discrimination by presenting evidence that (1) he is a member of a
protected class, (2) his job performance was meeting the employer’ s
legitimate expectations, (3) he was subject to a materially adverse
employment action, and (4) the employer treated similarly situated
employees outside the protected class more favorable. The third prong
may not apply, however, because Plaintiff asserts he was singled out for
discipline based on his race. “[W]here the issue is whether the plaintiff
was singled out for discipline based on a prohibited factor, it ‘makes little
sense ... to discuss whether she was meeting her employer’s reasonable
expectations.’” Curry v. Menard, Inc., 270 F.3d 473, 477 (7th Cir. 2001)
(quoting Flores v. Preferred Technical Group, 182 F. 3d 512, 515 (7th
Cir. 1999).
Nonetheless, Plaintiff cannot make a prima facie case of
discrimination on the basis of race. Plaintiff has not pointed to any
similarly situated individual who was treated more favorably. As stated
in Luster v. Illinois Department of Corrections,
Page 30 of 58
F.3d
,
, 2011
WL 2857262, *3 (7th Cir. 2011):
A plaintiff trying to meet this element by showing
that comparators outside the protected group were
‘similarly situated’ need not demonstrate complete
identity. What is required is ‘substantial
similarity’ given all relevant factors in the case.
[Citation.] Courts should apply a flexible and
factual, common-sense approach. [Citation.] The
question is whether the other employees’
situations were similar enough to the plaintiff’s
that it is reasonable to infer, in the absence of
some other explanation, that the different
treatment was a result of race or some other
unlawful basis. For claims of discriminatory
discipline, courts compare similarity of
misconduct, performance standards, qualifications,
and disciplining supervisor. [Citation.]”
Plaintiff testified that “Goddard,” a Caucasian: (1) got into a fight
outside the Facility but was not disciplined; and (2) was brought up on
charges for sexually assaulting a female on state grounds but was not fired
or disciplined. However, the misconduct is not similar, nor has Plaintiff
shown that the same disciplining supervisor was involved with both
Plaintiff and Goddard.
Plaintiff also testified that a Caucasian employee who brought
cigarettes into the facility was allowed to resign. However, Plaintiff was
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never disciplined for allegedly bringing drugs into the Facility and an
investigation does not generally constitute an adverse employment
action. See, e.g., Glapion v. CSX Transp. Inc., 2010 WL 489702, *5
(N.D. Ill. 2010) (an investigation was not a materially adverse
employment action).
Plaintiff testified, regarding the March 6, 2008, incident, that the
call log would reflect a number of Caucasians who did not come in for
shifts but were not disciplined. However, he did not provide any names,
and admitted he did not have the names of any Caucasians who did the
exact same thing and did not get disciplined. Because Plaintiff cannot
identify a similarly situated person, he cannot make a prima facie case of
discrimination based on his race. See, e.g., Mokry v. Partylite
Worldwide, Inc., 2009 WL 2588888, *14 (N.D. Ill. 2009) (the plaintiff
failed to establish a prima facie case of discrimination where she failed to
identify a similarly situated employee outside of her protected class who
received more favorable treatment).
Even if Plaintiff had presented a prima facie case of discrimination,
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the Department has offered legitimate, nondiscriminatory reasons for
disciplining and ultimately terminating Plaintiff. The Department
maintains that the discipline was imposed and the discharge occurred
because the charges were substantiated and Plaintiff violated the rules.
This is a legitimate, nondiscriminatory reason for imposing the discipline.
Luster,
F.3d at
, 2011 WL 2857262 at *4 (finding the defendant
provided a legitimate, nondiscriminatory reason for its adverse
employment action–that the defendant sexually harassed a coworker and
lied about it).
Because the Department provided a legitimate, nondiscriminatory
reason for its action, Plaintiff has the burden–for purposes of defeating
summary judgment–“of presenting evidence sufficient to allow a
reasonable jury to find that this reason was false (pretextual), from which
a trier of fact could infer that the real reason was unlawful
discrimination.” Id.
To demonstrate a material issue of fact as to pretext, a plaintiff
must show that either (1) it is more likely that a discriminatory reason
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motivated the employer than the proffered non-discriminatory reason, or
(2) the employer's explanation is not credible. Guerrero v. Ashcroft, 253
F.3d 309, 313 (7th Cir.2001). That is, Plaintiff must either show the
Department lied about the reasons for its actions or that the
Department’s reasons have no basis in fact. Guerrero, 253 F.3d at 313.
Plaintiff alleges the majority of incident reports were false, but he
has offered no evidence that the reports were false. See Gonzalez v.
Cook County Bureau of Administration, 450 F.Supp. 2d 858, 868 (N.D.
Ill. 2006) (noting the plaintiff “alleges without support that [his
supervisor] gave false testimony at his pre-termination hearing but has no
evidence that this testimony was false”). Plaintiff even admitted he
committed some of the infractions he was accused of, including violating
the administrative and facility directives on February 4, 2008, when he
requested a work-away day and failing to report for an overtime shift on
March 6, 2008. Both of those infractions resulted in a 30-day
suspension pending discharge.
Plaintiff also alleged that the BCA, after investigating Plaintiff’s
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complaint, determined that discrimination and retaliation occurred.
Plaintiff’s only “evidence” of this are two letters from the BCA stating:
After a careful review of the documents provided
by you as well as interviews and documents
obtained during the investigation, it has been
determined that sufficient information exists to
support your complaint.
The Bureau of Civil Affairs is therefore concluding
its investigation of this matter.” (May 22, 2007
Letter)
Based on the information obtained, it has been
determined that there is sufficient evidence of
retaliation or harassment as alleged on some of the
issues in your charge. Recommendations have
been forwarded to Administration as is appropriate.” (December 10, 2007, Letter)
The BCA’s conclusions have no probative value in this Court’s analysis.
See Silverman v. Board of Educ. of the City of Chicago, 637 F.3d 729,
732 (7th Cir. 2011) (finding the district court did not abuse its discretion
by determining that the Equal Employment Opportunity Commission
determination was not probative to the court’s analysis). This court
cannot evaluate the weight the BCA determination deserves without
knowing the evidence presented to the BCA or whether the evidence
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would be properly admissible in court. Id.
Plaintiff testified that Defendant Hankins–on some date not
identified in the record–made what Plaintiff claims was a racial comment
to another African American employee: “I didn’t know that important
phone calls came from taxicabs.” How this is a racial comment suggestive
of prejudice is not apparent. In any event, “[i]solated comments that are
no more than stray remarks in the workplace are insufficient to establish
that a particular decision was motivated by discriminatory animus.”
Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 491 (7th Cir. 2007)
(a remark can provide an inference of discrimination if made by a decision maker, around the time of the decision, and in reference to an
adverse employment action).
Finally, Plaintiff testified that Defendant Kurfman told Plaintiff
that Plaintiff was right about African Americans being mistreated and
that Defendant Kurfman admitted sending a few people “over there after
Plaintiff.” Even assuming Defendant Kurfman stated that African
Americans were mistreated, Defendant Kurfman did not state that
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Plaintiff himself was mistreated. Moreover, Defendant Kurfman’s
purported admission that he sent a few people “over there after
Plaintiff”–apparently a reference to Plaintiff being investigated–does not
support Plaintiff’s claim because an investigation is not generally a
adverse employment action. See Glapion, 2010 WL 489702, at *2.
Plaintiff has failed to present evidence sufficient to allow a reasonable jury to find that the Department’s reasons for its actions were
pretextual.
2. Plaintiff’s Title VII Retaliation Claim
To make out a case of Title VII retaliation under the direct method,
a plaintiff must show three things to survive summary judgment: (1) that
he engaged in an activity protected by Title VII; (2) he suffered a
materially adverse employment action; and (3) a causal connection
between the protected activity and the adverse employment action.
Davis v. Time Warner Cable of Southeastern Wisc., L.P.,
F.3d
,
2011 WL 2611303, *8 (7th Cir. 2011); Leonard v. Eastern Illinois
University, 606 F.3d 428, 431 (7th Cir. 2010). In a retaliation case, an
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adverse action is “one that a reasonable employee would find to be
materially adverse such that the employee would be dissuaded from
engaging in the protected activity.” Roney v. Illinois Dept. of Transp.,
474 F.3d 455, 461 (7th Cir. 2007); see, e.g. Silverman, 637 F.3d at 741
(negative performance evaluation could constitute an adverse action
within the meaning of the direct method of proving retaliation). An
adverse employment action in the Title VII retaliation context is broader
than in the Title VII discrimination context. Burlington Northern &
Santa Fe Railway Co. v. White, 548 U.S. 53, 64, 67 (2006) (the
“antiretaliation provision [of Title VII], unlike the substantive
[antidiscrimination] provision, is not limited to discriminatory actions
that affect the terms and conditions of employment”).
Here, Plaintiff cannot defeat summary judgment under the direct
method because he does not point to evidence of a causal connection
between the protected activity and the adverse employment actions.
See, e.g., Silverman, 637 F.3d at 741 (finding the plaintiff failed to offer
evidence that the evaluations were causally linked to her EEOC charge).
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Under the indirect method, a plaintiff must demonstrate (1) he
engaged in a statutorily protected activity, (2) he suffered an adverse
employment action, and (3) he met the employer’s legitimate
expectations, and (4) he was treated less favorably than similarly situated
employees who did not engage in the statutorily protected activity.
Silverman, 637 F.3d at 742. If the plaintiff establishes these elements,
the burden shifts to the employer to produce a legitimate, non-retaliatory
reason for it’s actions. Id. If the employer does so, the plaintiff must
come forward with evidence that the employer’s proffered reasons were
only a pretext for retaliation. Id.
Plaintiff has not demonstrated a prima facie case because he did not
demonstrate that he was treated less favorably than similarly situated
employees who did not engage in the protected activity. See Hudson v.
Chicago Transit Authority, 375 F.3d 552, 560-61 (7th Cir. 2004) (the
plaintiff failed to point to any evidence in the record to demonstrate that
he was singled out and that other similarly situated employees who did
not file a charge of discrimination against the CTA were treated more
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favorably).
Moreover, the Department has offered a legitimate, non-retaliatory
reason for its actions. For the same reasons noted above regarding
Plaintiff’s discrimination claim, Plaintiff has not presented evidence
suggesting that the Department’s actions were pretext for retaliation.
For all these reasons, the Department’s Motion for Summary
Judgment on Count I will be granted.
B.
Count III: § 1983 Retaliation Claim Against the Individual
Defendants
In Count III, Plaintiff alleged the Individual Defendants retaliated
against him for exercising his First Amendment rights by speaking out on
racial issues in the Department. “Liability under § 1983 must be
premised on personal involvement in the deprivation of the
constitutional right, not vicarious liability.” Payne for Hicks v.
Churchich, 161 F.3d 1030, 1042 n. 15 (7th Cir. 1998); Wolf-Lillie v.
Sonquist, 699 F.2d 864, 869 (7th Cir. 1983) (“An individual cannot be
held liable in a § 1983 action unless he caused or participated in an
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alleged constitutional deprivation”) (emphasis in original). However, a
defendant need not directly participate in the violation if: (1) he “acts or
fails to act with a deliberate and reckless disregard of [the] plaintiff’s
constitutional rights”; or (2) “the conduct causing the constitutional
deprivation occurs at [his] direction or with [his] knowledge and
consent.” Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986); see
also Patterson v. Burns, 670 F.Supp.2d 837, 849 (S.D. Ind. 2009).
A claim for First Amendment retaliation under § 1983 involves a
three-step inquiry: (1) whether the employee’s speech was
constitutionally protected; (2) whether the protected speech was a but-for
cause of the employer’s action; and (3) whether the employee suffered a
deprivation because of the employer’s action. Kodish v. Oakbrook
Terrace Fire Protection Dist., 604 F.3d 490, 501 (7th Cir. 2010), (noting
the United State “Supreme Court recently clarified that unless a federal
statute provides otherwise, the plaintiff bears the burden of
demonstrating but-for causation in suits brought under federal law”),
citing Gross v. FBL Fin. Serv., Inc., 129 S. Ct. 2343, 2351 (2009). The
Page 41 of 58
Seventh Circuit has also held that whether the indirect, burden shifting
analysis continues to apply in non-Title VII cases “remains to be seen.”
Kodish, 604 F.3d at 501; see also Zitzka v. Village of Westmont, 743
F.Supp.2d 887, 915 n. 11 (N.D. Ill. 2010) (questioning whether burden
shifting analysis remains; to make out a prima facie case of but for
causation would require the same evidence to show pretext under the
indirect, burden shifting method); Davis v. Harris, 2006 WL 3321630,
*26 (C.D. Ill. 2006) (“First Amendment retaliation cannot be established
by the indirect method”).
If the plaintiff makes out the prima facie case of First Amendment
retaliation, the burden shifts to the defendant to show that the same
decision would have been made in the absence of the protected speech.
Zellner v. Herrick, 639 F.3d 371, 378-79 (7th Cir. 2011). If the
defendant does so, the plaintiff must then demonstrate that the proffered
reasons are pretextual. Id.
“At the summary judgment stage, this
means a plaintiff must produce evidence upon which a rational finder of
fact could infer that the defendant's proffered reason is a lie.” Id.
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The Individual Defendants do not challenge, for purposes of
summary judgment, whether Plaintiff’s speech was constitutionally
protected. See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 417 (2006)
(finding the “First Amendment protects a public employee’s right, in
certain circumstances, to speak as a citizen addressing matters of public
concern”); Bivens v. Trent, 591 F.3d 555, 560 (7th Cir. 2010) (to prevail
on a First Amendment retaliation claim, a public employee must have
spoken as a citizen–not as a public employee–and demonstrate that this
speech addressed a matter of public concern). Therefore, this Court
assumes, for purposes of the Motion, that Plaintiff’s filing of the BCA
complaints was constitutionally protected activity. This Court addresses
only the issues raised by the Individual Defendants: (1) whether a causal
connection exists for actions taken prior to the alleged protected activity;
(2) whether certain Individual Defendants are entitled to summary
judgment because they did not take any materially adverse action against
Plaintiff after the filing of the first BCA complaint; and (3) Plaintiff can
show that, but for his protected speech, the remaining Individual
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Defendants would have taken action against him or that any other
employees who did not engage in the protected activity were treated
better.
1.
Defendants Howard and Jacobson
Plaintiff admitted in both his deposition and his Response to the
Statement of Undisputed Facts that Defendants Howard and Jacobson
could be dismissed from the Amended Complaint. Therefore, summary
judgment will be granted in favor of Defendants Howard and Jacobson
and they will be dismissed from the case.
2.
Actions Occurring Prior to the January 2007 Filing of the
BCA Complaint
Plaintiff alleged he suffered certain adverse employment actions
that preceded the filing of the BCA complaint: the June 2006 denial of a
promotion; the September 16, 2006, incident; the October 20066
Because the record is unclear whether this occurred in October 2006 or
September 2007, or both, this Court will consider both dates.
6
Page 44 of 58
counseling for the misuse of sick time; the November 2006, incident; the
November 24, 2006, incident; and the December 24, 2006, incident.
Because those actions preceded the January 2007 BCA complaint, those
actions could not have been motivated by Plaintiff’s alleged protected
speech. Accordingly, Plaintiff cannot sustain a retaliation claim based on
those events.
Plaintiff admitted Defendant Jeslis was only sued for his role in the
November 2006 perimeter patrol issue. That act preceded Plaintiff’s
January 2007 BCA complaint. Therefore, Defendant Jeslis is entitled to
summary judgment because Plaintiff cannot show causation. See, e.g.,
Wackett v. City of Beaver Dam, Wis., 642 F.3d 578, 582 (7th Cir. 2011
(finding the plaintiff could not show causation because he could not
show that any of the defendants knew of his purportedly protected
speech).
3. Materially Adverse Employment Actions
Defendant Volk claims she is entitled to summary judgment
because the only action alleged against her that followed the filing of the
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January 2007 BCA complaint was a September 2007 oral counseling for
misuse of sick time. Volk claims, without citation to any authority, that
the counseling is not a materially adverse employment action.
Defendant McAdory also seeks summary judgment on the basis
that the acts he is alleged to have taken do not constitute materially
adverse employment actions. Plaintiff alleged that McAdory: (1) failed to
get him his Security Therapy Aide II uniform; and (2) was somehow
involved in Defendant’s Clayton’s investigation of Plaintiff for bringing
drugs into the facility.
In the First Amendment retaliation context,“the plaintiff must show
a retaliatory act that would dissuade a reasonable person from opposing
discrimination or filing a discrimination complaint.” Davis v. Harris,
2006 WL 3321630, *25 (C.D. Ill. 2006) (finding an issue of fact
whether a written reprimand was sufficient to constitute a retaliatory
act). “[A] § 1983 case does not require an adverse employment action
within the meaning of the antidiscrimination statutes, such as Title VII.”
Spiegla v. Hull, 371 F.3d 928, 941 (7th Cir. 2004) (involving First
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Amendment retaliation claim).
The Individual Defendants cite no authority in support of their
contention that the September 2007 oral reprimand would not dissuade
a reasonable person from opposing discrimination. Therefore, this Court
will not grant summary judgment on this basis.
4. Remaining Individual Defendants
Defendants argue that the remaining Individual Defendants are
entitled to summary judgment because Plaintiff cannot show that but for
his protected speech, they would have taken any action against him and
cannot show that other employees who did not engage in the protected
activity were treated better. Defendants specifically address the Fall
2006 probationary promotion; the February 4, 2008, incident; the
February 7, 2008, incident; the March 6, 2008, incident; and the
investigation involving drugs.
Plaintiff has not presented any evidence that, but for his filing of
the BCA complaint, the Individual Defendants would not have taken the
actions against him. Moreover, even if Plaintiff could make out a prima
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facie case, the Individual Defendants have provided evidence that the
same decisions would have been made absent Plaintiff’s protected speech.
For the reasons cited above with regard to the Department, Plaintiff has
failed to produce evidence upon which a rational finder of fact could infer
that the Individual Defendant’s proffered reasons are a lie. Zellner, 639
F.3d at 379.
For all these reasons, the Individual Defendants’ Motion for
Summary Judgment on Count III will be granted.
C.
Count V: Equal Protection Claim
In Count V of the Amended Complaint, Plaintiff alleges that
Defendants Scott, Williams, and Clayton violated Plaintiff’s right to
equal protection. Defendants Scott, Williams, and Clayton assert they
are entitled to summary judgment because Plaintiff has not identified a
similarly situated person, let alone a person not of his protected class who
was treated more favorably. Defendants Scott, Williams, and Clayton
assert that to the extent Plaintiff alleges any retaliation violates his rights
under the Equal Protection Clause, he cannot maintain that claim. Such
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a position is supported by Boyd v. Illinois State Police, 384 F.3d 888,
898 (7th Cir. 2004) (right to be free from retaliation may not be
vindicated under the Equal Protection Clause).
The Fourteenth Amendment’s Equal Protection Clause grants all
Americans “a right to be free from invidious discrimination in statutory
classifications and other governmental activity.” Harris v. McRae, 448
U.S. 297, 322 (1980). A violation of this constitutional right allows an
aggrieved party to seek redress pursuant to § 1983. See Nabozny v.
Podlesny, 92 F.3d 446, 453 (7th Cir. 1996).
To state a prima facie case under the Equal Protection Clause of the
Fourteenth Amendment, a plaintiff must establish that he: (1) is a
member of a protected class; (2) is otherwise similarly situated to
members of the unprotected class; (3) suffered an adverse employment
action; (4) was treated differently from members of the unprotected class;
and (5) the defendants acted with discriminatory intent. McPhaul v.
Board of Com'rs of Madison County, 226 F.3d 558, 564 (7th Cir. 2000);
see also, Pirela v. Village of North Aurora, 966 F.Supp. 661, 667 (N.D.
Page 49 of 58
Ill. 1997) (discrimination must be based on his membership to a
particular class and not an individual basis).
Plaintiff alleged that Scott, Williams, and Clayton attempted to
persuade residents of the Facility to get Plaintiff to commit unlawful acts
so as to subject Plaintiff to criminal charges and prosecution. Plaintiff
further alleged that similarly situated Caucasian employees have never
been subject to such action.
However, Plaintiff has not pointed to any similarly situated
Caucasian employee who was treated differently. See Chavez v. Illinois
State Police, 27 F.Supp.2d 1053, 1066 (N.D. Ill. 1998) (granting
summary judgment where the plaintiff could not point to a similarly
situated individual of a different race who was treated differently).
Defendants Scott, Williams, and Clayton are entitled to summary
judgment on Count V.
D.
Count VI: Intentional Infliction of Emotional Distress Against the
Individual Defendants
In Count VI, Plaintiff alleges the Individual Defendants committed
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the acts that made up the other claims with the intent to inflict severe
emotional distress on Plaintiff. To prove a claim for the intentional
infliction of emotional distress, Plaintiff must establish that: (1) the
Individual Defendant’s conduct was extreme and outrageous; (2) the
Individual Defendants intended to inflict severe emotional distress or
new there as a high probability their conduct would cause severe
emotional distress; and (3) the conduct in fact caused severe emotional
distress. See McGrath v. Fahey, 126 Ill. 2d 78, 86 (1988). The
emotional distress required to support the cause of action must be “so
severe that no reasonable person could be expected to endure it.” Adams,
292 Ill.App.3d at 39.
The Individual Defendants assert that they are entitled to summary
judgment on Count VI because Plaintiff cannot demonstrate the
Individual Defendants caused Plaintiff severe emotional distress.
Specifically, the Individual Defendants claim that (1) Plaintiff made no
allegations that the conduct caused Plaintiff any distress at all; and (2)
Plaintiff admits his only damages are that he is blind, and that this was
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caused by the inability to get his cataracts removed because he had no
insurance.
“Absent proof that the emotional distress suffered by the plaintiff
was so severe so as to exceed all bounds of human decency, the stringent
test established for this tort has not been satisfied.” Adams v. Sussman
& Hertzberg, Ltd., 292 Ill.App.3d 30, 39 (1997); see also Johnson v.
Kmart Corp., 311 Ill.App.3d 573, 580-81 (2000) (summary judgment
granted where no factual issue existed regarding the severity of the
emotional distress suffered by the plaintiffs). By his own admission, the
only damage Plaintiff suffered was physical damage to his eyes that
resulted from his inability to get medical care. Plaintiff has not pointed
to any other evidence of damages–emotional or otherwise–resulting from
the alleged conduct by the Individual Defendants. Because no genuine
issue of material fact exists regarding an element of the claim, the
Individual Defendants are entitled to summary judgment on Count VI.
E.
Count VII: Gross Negligence Claim Against Clayton and Sanders
In Count VII, Plaintiff alleged that Defendants Clayton and
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Sanders, in their individual capacities, had a duty to prevent
discrimination due to a nondiscrimination policy in the collective
bargaining agreement between the union and CMS. Plaintiff alleged
Defendants Clayton and Sanders breached that duty be failing to
intervene or prevent Plaintiff and other African American employees
from being subject to a discriminatory work environment. In his
deposition, Plaintiff stated his gross negligence claim was based on
Defendant Clayton and Sanders’ failure to take any action to resolve the
issues inside the facility and contributed to the issues.
Defendants Clayton and Sanders argue that sovereign immunity
bars Plaintiff’s claim from being heard in this Court. Specifically,
Defendants Clayton and Sanders assert that this claim against them is in
fact a suit against the State.
The State of Illinois cannot be made a defendant party to a lawsuit
in any court except as provided in the Court of Claims Act (705 ILCS
505/1 et seq. (West 2008). 745 ILCS 5/1 (West 2008); Jackson v.
Alverez, 358 Ill. App. 3d 555, 559 (2005) (noting the General Assembly
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reinstated sovereign immunity in the Court of Claims Act); Benning v.
Board of Regents of Regency University, 928 F.2d 775, 778-79 (7th Cir.
1991) (state immunity rules apply in federal court). The Court of Claims
has exclusive jurisdiction to hear certain matters, including “[a]ll claims
against the State for damages in cases sounding in tort, if a like cause of
action would lie against a private person or corporation in a civil suit.”
705 ILCS 505/8(d).
The applicability of sovereign immunity does not depend on the
formal designation of the defendants in the action but on the nature of
the State employee’s conduct and the relief the plaintiff seeks. Jackson,
358 Ill. App. 3d at 560; Janes v. Albergo, 254 Ill. App. 3d 951, 956
(1993). Specifically, an action brought against a State employee in his
individual capacity is viewed as having been brought against the State
where: (1) there are no allegations that a state employee acted beyond
the scope of his authority through wrongful acts; (2) the employee did
not allegedly breach a duty owed to the public generally independent of
his state employment; and (3) the complained of actions involve matters
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ordinarily within the employee’s normal and official functions with the
State. Healy v. Vaupel, 133 Ill.2d 295, 309 (1990); Jinkins v. Lee, 209
Ill.2d 320, 330 (2004). In addition, an action brought against a State
employee in his individual capacity will be considered an action against
the State where a judgment in favor of the plaintiff could operate to
control the actions of the State or subject it to liability. Currie v. Lao,
148 Ill. 2d 151, 158 (1992).
The first and third prong overlap, and both are met here. See
Jackson, 358 Ill. App. 3d at 560 (first and third prong relating to scope of
authority and duties as a State employee overlap). “When the Illinois
courts speak of an act ‘beyond the scope of authority,’ they contemplate
an employee acting not just in a wrongful manner, but sticking his nose
in business where it doesn’t belong.” Turpin v. Koropchak, 567 F.3d
880, 883 (7th Cir. 2009)(emphasis in original).
Here, Plaintiff essentially alleged that Defendants Clayton and
Sanders failed to do anything about the alleged disparate treatment of
Plaintiff or other African American employees. The treatment of which
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Plaintiff complained– failure to get a uniform, the disciplined imposed,
the failure to be promoted–and Defendants Clayton’s and Sanders’
response thereto all related to functions within the scope of their
authority. See, e.g., Janes, 254 Ill. App. 3d at 959 (employees who were
alleged to have engaged in wilful and wanton conduct and violated
hospital policy did not exceed the scope of their authority where they
acted in furtherance of their employer’s purposes) Healy, 133 Ill. 2d at
311 (allegation that the university employees negligently performed their
duties was not a claim that the defendants acted in violation of law or in
excess of their authority). In addition, the complained of actions
involved matters ordinarily within the duties of Defendants Clayton and
Sanders as State employees. Jackson, 358 Ill. App. 3d 561 (third prong
met where the complained of actions involved matters ordinarily within
the State employee’s duties).
The second prong is also met. For the second prong, the question
“is whether the defendant breached a duty owed by all citizens, or
whether he breached a duty held uniquely by State employees holding
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the job at issue.” Turpin, 567 F.3d at 883. Here, the duty alleged by
Plaintiff– a duty to prevent or intervene regarding alleged disparate
treatment based on an anti-discrimination policy in the collective
bargaining agreement– is a duty owed only because of Defendants
Clayton’s and Sanders’ employment with the State. See Cortright v.
Doyle, 386 Ill. App. 3d 895, 903-05 (2008) (finding the duty alleged to
have been breached–the responsibility to prepare performance valuations,
impose discipline, and set deadlines–was not a duty owed independent of
their state employment, noting, “[s]upervisors are hired to supervise” and
“[t]heir alleged conduct, no matter how misguided, was work-related and
unique to their capacity as supervisors”).
Therefore, the claim against Defendants Clayton and Sanders is
actually a claim against the State, which must be brought in the Court of
Claims. Therefore, the claims against Defendants Clayton and Sanders
in Count VII are dismissed for lack of jurisdiction.
VII. CONCLUSION
For the reasons stated, the Department Defendants’ Motion for
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Summary Judgment (d/e 107) is GRANTED:
(1)
The Department’s Motion for Summary Judgment on Count I
of the First Amended Complaint is GRANTED;
(2)
The Individual Defendants’ Motion for Summary Judgment
on Counts III and VI is GRANTED;
(3)
Summary judgment is GRANTED in favor of the Defendants
Gregg Scott, Tarry Williams, and Chris Clayton on Count V
of the First Amended Complaint; and
(4)
The claims asserted against Defendants Chris Clayton and
Darrell Sanders in Count VII of the First Amended Complaint
are DISMISSED for lack of subject matter jurisdiction.
ENTERED: August 1, 2011
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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