Alamo v. Stephan et al

Filing 256

MEMORANDUM Opinion and Order. Signed by the Honorable Sharon Johnson Coleman on 2/18/2021. Mailed notice. (ym, )

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT G. ALAMO ,
Plaintiff,
v.
THE CITY OF CHICAGO, et al.,
Defendants.

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Case No. 12-cv-4327
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Plaintiff Robert G. Alamo brought this employment discrimination lawsuit against his
former employer, the City of Chicago, and his former supervisor, Lieutenant Charlie Bliss, based on
his national origin, race, and disabilities under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C § 2000e, et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101, et seq., and the Illinois Human Rights Act (“IHRA”), 735 ILCS 5/1-101, et seq. Before the
Court is defendants’ motion for summary judgment brought pursuant to Federal Rule of Civil
Procedure 56(a). For the reasons explained below, the Court grants in part and denies in part
defendants’ summary judgment motion. The remaining claim in this lawsuit is Alamo’s hostile work
environment claim based on his race and national origin. The Court dismisses plaintiff’s other
claims and Charlie Bliss as a named defendant from this lawsuit.
Background
Alamo, who is Latino and was born in Puerto Rico, began working for the Chicago Fire
Department (“CFD”) in February 2006, six months after he returned home from active combat duty
in Afghanistan. Between October 2009 and March 2012, Alamo was assigned to Engine 55. Alamo
testified at his deposition that shortly after he began working at Engine 55, a co-worker called him
racially-charged names like “fucking Puerto Rican” and “spic” on an almost daily basis. Alamo

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further testified that while working at Engine 55, co-workers tampered with his personal property
and threw away his food. He also testified that he was temporarily assigned to other fire stations
more than his co-workers. At his deposition, Alamo stated that he reported this misconduct to his
supervisor Lieutenant Charlie Bliss.
On September 13, 2011, Alamo reported for duty at Engine 55. He was not feeling
well, so he decided to go to the bunkroom to lie down, at which time he told a coworker to come
get him if a call came in. Later that day, Captain Pat Stefan awakened Alamo by pushing and
shaking him, and shouting “Motherfucker get up. You missed the run. You motherfucker. You
lazy motherfucker. You piece of shit.” Alamo testified that during this altercation, Captain Stefan
told him he did not like “his kind.” He also testified that “I believe Captain Stefan called me a spic.”
During this incident, Captain Stefan chest bumped Alamo resulting in a contusion. After this
incident, Alamo called the police department and filed a report. Two days after the incident with
Captain Stefan, Alamo went on a medical “lay-up” for what Alamo described as chest pains, stress,
and anxiety. Alamo testified that while he was on lay-up, other firefighters harassed him at his home
during “wellness checks.”
In March 2012, Alamo submitted authorizations to return to work signed by his treating
physicians. Thereafter, the CFD requested more medical documentation and that Alamo undergo
psychological testing, which took place in May 2012. After Alamo was cleared to go back to work in
February 2013, he was assigned to Engine 81, which significantly increased the time it took him to
commute to work. Alamo avers that Lieutenant Michael Daniels told him that he had been moved
to Engine 81 because he behaved badly. Alamo further contends that after he returned to work in
February 2013, he was written up for many infractions despite not having any serious issues between
2006 and 2011.

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In 2015, Alamo was transferred to Third District, Rescue 1 Tower Ladder 63, where his
supervisors warned him that they had “heard about his reputation.” During his time at Tower
Ladder 63, Alamo requested to become certified for the Office of Fire Investigations, but had to use
vacation time to attend the course.
In 2016, Alamo was under considerable stress and a superior officer advised him to go on
another medical lay-up. In early 2017, the CFD’s medical director Dr. William Wong requested that
Alamo undergo a fitness for duty evaluation based on Alamo’s medical lay-ups for stress, his erratic
behavior observed by medical staff and other CFD employees, and his disciplinary record. In
February 2017, the CFD’s medical department concluded that Alamo was not fit to return for duty.
In July 2017, the CFD sent Alamo a letter stating that he needed to either resign or go on an unpaid
medical leave of absence because he was not fit to return to duty and had exhausted all of his paid
medical leave allowed under the relevant collective bargaining agreement (“CBA”). Alamo did not
choose either of these options, but expressed his desire to go back to work. On August 9, 2017, the
CFD terminated Alamo’s employment.
Legal Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A
genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.
Ct. 2505, 2510, 91 L.Ed. 2d 202 (1986). When determining whether a genuine issue of material fact
exists, the Court must view the evidence and draw all reasonable inferences in favor of the
nonmoving party. Id. at 255; Hackett v. City of South Bend, 956 F.3d 504, 507 (7th Cir. 2020). After “a
properly supported motion for summary judgment is made, the adverse party ‘must set forth specific
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facts showing that there is a genuine issue for trial.’” Anderson, 477 U.S. at 255 (quotation omitted).
“The principal function of summary judgment is to prevent unnecessary trials by screening out
factually unsupported claims.” James v. Hale, 959 F.3d 307, 315 (7th Cir. 2020).
Discussion
Race and National Origin Discrimination
Alamo brings his race and national origin discrimination claims under both 42 U.S.C. § 1981
and Title VII, which the Court reviews under the same legal standard. Morris v. BNSF Railway Co.,
969 F.3d 753, 758 (7th Cir. 2020). In determining whether employment discrimination claims can
go forward to trial, the Court’s focus is on “whether the evidence would permit a reasonable
factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor
caused the discharge or other adverse employment action.” Ortiz v. Werner Enter., Inc., 834 F.3d 760,
765 (7th Cir. 2016). To establish a race or national origin discrimination claim, a plaintiff may
proceed by introducing direct or circumstantial evidence that his employer took an adverse action
against him based on his national origin or race. Id. at 760. In the alternative, a plaintiff may present
evidence through the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Tyburski v. City of Chicago, 964 F.3d 590, 598 (7th
Cir. 2020). Either way, “at the summary judgment stage the court must consider all admissible
evidence to decide whether a reasonable jury could find that the plaintiff suffered an adverse action
because of” his protected class. Carson v. Lake Cty., Ind., 865 F.3d 526, 533 (7th Cir. 2017) (emphasis in
original).
Alamo proceeds under the McDonnell Douglas burden shifting method of proof, which
requires him to set forth evidence creating a triable issue of fact that: (1) he belongs to a protected
class; (2) he met the City’s legitimate job expectations; (3) he suffered an adverse employment action;
and (4) the CFD treated similarly situated employees, who were not in his protected class, more
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favorably. Marshall v. IDOC, 973 F.3d 789, 791–92 (7th Cir. 2020). Once Alamo sets forth a prima
facie case of discrimination, the CFD must present evidence of a legitimate, non-discriminatory
reason for the adverse employment action. Kellogg v. Ball State Univ., 984 F.3d 525, 528 (7th Cir.
2021). If the CFD makes this showing, “the burden shifts back to the plaintiff to call the
explanation into question as pretextual.” Id.
The CFD first contends that Alamo cannot proceed with his race discrimination claim
brought under 42 U.S.C. § 1981 because he cannot show that the City’s actions interfered with his
ability to make, enter, or enforce his contract of employment with the City. See Domino’s Pizza, Inc. v.
McDonald, 546 U.S. 470, 476, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006). Specifically, the CFD argues
Alamo cannot bring his § 1981 claim because the contract at issue was the CBA between his union
and the City, and not Alamo and the City. The City’s argument is unavailing because a “contractual
relationship” also exists between Alamo and the CFD as employer and employee. Davis v. Time
Warner Cable, 651 F.3d 664, 671 (7th Cir. 2011) (“Section 1981 prohibits racial discrimination and
retaliation against employees when a contractual relationship exists between the employer and
employee.”). To conclude otherwise would mean that union members, who are the intended
beneficiaries of CBAs, could never sue their employers for race discrimination under § 1981.
Moving to Alamo’s race and national origin discrimination claims, Alamo has failed to
present evidence creating a genuine issue of material fact for trial that he was meeting the CFD’s
legitimate job expectations, and thus he has not establish prima facie case of national origin or race
discrimination. Here, the CFD explains that Alamo was not meeting its legitimate job expectations
based on a report performed in February 2017 by an independent neuropsychologist, Dr. Lisa Rone,
who concluded that Alamo was not fit to return to work as a firefighter. Dr. Rone based her
decision on Alamo’s personnel and disciplinary record, his personal physicians’ notes, and
psychological and medical testing, including an EEG and MRI.
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Alamo does not point to evidence contradicting Dr. Rone’s conclusion, but rather contends
that three separate physicians had found him fit for duty in 2012, and another physician found him
fit for duty over a year after his discharge in 2018. As for the three physicians Alamo identifies, Drs.
Daniel Martinez, Thomas Brennan, and Dr. Carlos Reynes, they concluded that Alamo was able to
return to duty approximately five years before his discharge. In particular, Dr. Martinez’s letter
stating Alamo could return to work is dated March 14, 2012 and Dr. Brennan’s report is dated
March 24, 2012. Similarly, Dr. Reynes stated Alamo could return to work on March 14, 2012. As to
Dr. Elizabeth Thompson’s report, she evaluated Alamo in October 2018. These medical opinions
are not relevant because they do not demonstrate that Alamo was fit for duty at the time of his
discharge in August 2017. See Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 545 (7th Cir.
2002) (“the question is whether he was meeting his employer’s expectations at the time he was
terminated.”). Simply put, the question is not whether Alamo was ever fit for duty, but whether he
was fit to return to duty at the time the CFD terminated his employment. Zayas v. Rockford Mem’l
Hosp., 740 F.3d 1154, 1158 (7th Cir. 2014).
Although Alamo did not establish a prima facie case of race or national origin
discrimination, the Court turns to the pretext inquiry for the sake of completeness. The CFD
explains that the reason it terminated Alamo’s employment is after he ran out of paid medical leave
in the summer of 2017, he had the choice to take unpaid medical leave or resign because had not
been cleared for duty. He declined to make a decision, after which the CFD terminated his
employment.
Pretext is more than faulty reasoning or bad judgment – it is a lie or a phony reason. Barnes
v. Board of Trs. of Univ. Ill., 946 F.3d 384, 389 (7th Cir. 2020). To establish pretext, Alamo must
identify “weaknesses, implausibilities, inconsistencies, or contradictions” in the CFD’s proffered
reason that a reasonable person would find unworthy of credence. de Lima Silva v. Department of
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Corr., 917 F.3d 546, 561 (7th Cir. 2019) (citation omitted). In this context, “the question is not
whether the employer’s stated reason was inaccurate or unfair, but whether the employer honestly
believed the reason it has offered to explain the discharge.” Robertson v. Department of Health Servs.,
949 F.3d 371, 380 (7th Cir. 2020) (citations omitted).
Alamo seeks to establish pretext three separate ways. First, he argues that he can establish
pretext because the CFD treated similarly situated employees more favorably in the manner which
they returned to work from a medical lay-up. In other words, Alamo asserts that the CFD
selectively enforced the return to work policy against him one way, but non-Latino individuals
another way. See Coleman v. Donahoe, 667 F.3d 835, 858 (7th Cir. 2012). Although similarly situated
employees need not be identical, they must be directly comparable to the plaintiff in all material
respects. McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360, 368–69 (7th Cir. 2019). This means
Alamo must show the comparators and he had the same decisionmaker, were subject to the same
standards, and engaged in similar conduct without such differentiating or mitigating circumstances
that would distinguish the decisionmaker’s treatment of them. See id; Barbera v. Pearson Educ., Inc.,
906 F.3d 621, 629 (7th Cir. 2018).
In support of his argument, Alamo contends that the record shows twenty-five non-Latino
members of the CFD had gone on medical lay-ups for stress, but that none were required to submit
additional documentation or undergo fitness for duty evaluations like he did. In making this
argument, Alamo points to a list of firefighters who went on medical lay-up that gives reasons why
the individual was on lay-up, the treatment they received, and whether more documentation was
necessary. (R. 225-13, Defs.’ Ex. 17, DEF002896). The list, however, provides no details as to
whether there were circumstances that would distinguish each individual’s treatment, except for the
fact that Alamo’s mental health diagnosis, which included Post-Traumatic Stress Disorder (“PTSD”)
and Traumatic Brain Injury (“TBI”), among other factors, was significantly different than the non7

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Latino firefighters. This bare-boned list, which contains only partial information as to each
individual, is insufficient to raise a triable issue of fact that the CFD treated comparable individuals
better than Alamo because it lacks sufficient detail for the Court to make a meaningful comparison
of the individuals listed.
Second, Alamo asserts that he can establish pretext because Dr. Rone’s fitness for duty
evaluation was not the motivation for the CFD to terminate his employment. Alamo bases this
argument on his physicians and Dr. Thompson, who concluded that he was fit to return to duty. As
discussed, these physicians found Alamo was fit for duty either five years before or one year after his
discharge. That the CFD relied on the most current fitness examination by Dr. Rone does not raise
a reasonable inference that the reason for discharging Alamo was a lie or phony reason. See Khungar
v. Access Cmty. Health Network, 985 F.3d 564, 573 (7th Cir. 2021) (“[S]peculation is not sufficient to
survive summary judgment,” instead “there must be evidence.”) (citation omitted). Moreover,
Alamo relies on the fact that he requested a second opinion after Dr. Rone’s conclusion to show
pretext, but that alleged request is not supported by the record.
Last, Alamo argues he can establish pretext based on the CFD’s shifting explanation for
terminating his employment. See Donley v. Stryker Sales Corp., 906 F.3d 635, 638 (7th Cir. 2018).
Alamo bases his argument on the CFD’s second reason for his termination, namely, that Alamo
falsified his application to work for the CFD. That the CFD gave two reasons for Alamo’s
termination does not establish that the reasons were pretext for discrimination, especially because
the CFD never strayed from its explanation that Alamo was not fit for duty and had exhausted all of
his paid medical leave in the summer of 2017. See McCann v. Badger Mining Corp., 965 F.3d 578, 590
(7th Cir. 2020) (“the explanations must actually be shifting and inconsistent to permit an inference
of mendacity.”) (citation omitted).

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Viewing the facts and all reasonable inferences in Alamo’s favor, he has failed to present
sufficient evidence creating a genuine issue of material fact for trial that he met the CFD’s legitimate
job expectations and that the CFD’s reason for his termination was pretext for race or national
origin discrimination. The Court therefore grants this aspect of defendants’ summary judgment
motion.
Retaliation
Alamo also brings a retaliation claim under the IHRA, § 1981, and Title VII, which the
Court reviews under the same standard. Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012), overruled on
other grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016). To establish his retaliation
claim, Alamo must show: (1) he engaged in a statutorily protected activity; (2) the CFD took a
materially adverse action against him; and (3) there is a but-for causal connection between the two.
Khungar, 985 F.3d at 578; Robertson v. Dep’t of Health Servs., 949 F.3d 371, 378 (7th Cir. 2020).
Alamo provides two types of statutorily protected activity under the first element of his
retaliation claim, namely, when he called the police regarding the September 2011 incident with
Captain Stefan and his April 2012 EEOC Charge alleging national origin discrimination, disability
discrimination, and retaliation. See Alamo v. Bliss, 864 F.3d 541, 555 (7th Cir. 2017) (“Alamo’s ability
to report what he viewed as workplace discrimination clearly is protected activity under Title VII.”);
Greengrass v. International Monetary Sys., Ltd., 776 F.3d 481, 485 (7th Cir. 2015) (EEOC charges are the
“most obvious form of statutorily protected activity.”) (citation omitted). Second, as Alamo
correctly asserts, the definition of an adverse action in the context of a retaliation claim is broader
than in intentional discrimination claims. Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53,
63-64, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Here, Alamo maintains that the CFD’s adverse
actions include the retaliatory hurdles that he had to submit three treating physician medical releases
in March 2012 and undergo a fitness for duty evaluation during that time period. He also argues
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that being assigned to Engine 81 in February 2013, which significantly increased the distance to
work, was another retaliatory hurdle.
To establish a causal connection between the statutorily protected activities of the 2011
police report and 2012 EEOC Charge and the retaliatory conduct, Alamo must set forth “evidence
like suspicious timing, ambiguous statements, treatment of similarly-situated employees, and any
other relevant information that could permit an inference of retaliation.” Robertson, 949 F.3d at 379.
As a threshold matter, however, Alamo must show that the decisionmaker who retaliated against
him knew of the protected activity in the first instance. Khungar, 985 F.3d at 578; Tyburski, 964 F.3d
at 603.
Turning to who made the decisions involved in the alleged retaliatory actions, the
decisionmaker who requested that Alamo submit to a fitness of duty evaluation in 2012 was Dr.
Hugh Russell, the CFD Medical Director from November 1988 until November 2012. 1 Alamo does
not explain how Dr. Russell knew of his 2012 EEOC Charge or his police report about Captain
Stefan’s 2011 conduct nor does he point to evidence in the record that would show this knowledge.
Similarly, Alamo does present evidence as to who requested him to submit three treating physician
medical releases in March 2012, but merely states the medical department told him as such. At his
deposition, Alamo stated “they” asked him to have his doctors sign a release that he could return to
work. After reviewing the record, the Court could not locate who “they” were.
Further, Alamo does not identify who assigned him to Engine 81 when he returned to work
in February 2013, although he averred that Lieutenant Daniels told him he had been assigned to
Engine 81 for his bad behavior. The evidence in the record is clear, however, that Lieutenant

Although Alamo’s asserts that a district chief threatened him with a fitness for duty evaluation if he pressed
charges against Captain Stefan after the September 2011 incident, Alamo does not cite to the record to
support this allegation. And, after searching the record, the Court could not find any evidentiary support for
this assertion.
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Daniels did not make the decision to assign Alamo to Engine 81. Alamo’s averment alone, without
identifying who assigned him to Engine 81, does not raise a reasonable inference that this unnamed
decisionmaker knew of Alamo’s 2012 EEOC Charge or 2011 police report about Captain Stefan.
King v. Hendricks County Comm’rs, 954 F.3d 981, 984 (7th Cir. 2020) (reasonable inferences must be
supported by more than speculation or conjecture).
In the end, Alamo must present some details as to who made the retaliatory decisions and if
they knew about his protected activities in order to raise a triable issue of fact that the CFD
retaliated against him based on his protected conduct. Without more details as to who the relevant
decisionmakers were and whether they knew of his protected activities, Alamo falls short of this
task. The Court grants defendants’ motion as to Alamo’s retaliation claims.
Hostile Work Environment
Next, Alamo brings a hostile work environment claim against the CFD. 2 To survive a
summary judgment motion on a hostile work environment claim, Alamo must present evidence
demonstrating a triable issue of fact that: (1) the work environment was both objectively and
subjectively offensive; (2) the harassment was based on membership in a protected class; (3) the
conduct was severe or pervasive; and (4) a basis for employer liability. Tyburski, 964 F.3d at 601;
Hunt v. Wal-Mart Stores, Inc., 931 F.3d 624, 627 (7th Cir. 2019). Courts consider hostile work
environment claims under a totality of the circumstances approach. See Harris v. Forklift Sys., Inc.,
510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Swyear v. Fare Foods Corp., 911 F.3d 874, 881
(7th Cir. 2018).

Although Alamo also brought his hostile work environment claim against defendant Charlie Bliss pursuant
to 42 U.S.C. § 1983, Alamo failed to address defendants’ argument that Bliss was not liable under § 1983
because he was not acting under the color of state law. Alamo’s failure to respond results in waiver of this
claim. See Ennin v. CNH Indus. Am., LLC, 878 F.3d 590, 595 (7th Cir. 2017).
2

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The CFD first argues that Alamo has failed to present evidence raising a triable issue of fact
that the harassment he experienced was severe or pervasive. The Court disagrees. When
determining if conduct is severe or pervasive, courts look to “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris,
510 U.S. at 23.
Construing the facts and all reasonable inferences in Alamo’s favor, he has presented
evidence that when he worked at Engine 55 from mid-October 2009 until March 2012, a co-worker
called him racially-charged names like “fucking Puerto Rican” and “spic” on an almost daily basis,
which qualifies as severe and pervasive harassment. See Alamo, 864 F.3d at 550 (“both slurs are
severe: each evinces a clear animus against a particular national origin.”). Further, Alamo points to
other harassment during this time period, including that his co-workers tampered with his personal
property, threw away his food, and harassed him at home while he was on medical lay-up. In
addition, Alamo has set forth evidence of physically threatening and severe behavior based on the
September 2011 incident with Captain Stefan, who pushed Alamo and chest bumped him calling
him a “spic” and that he did not like Alamo’s “kind.” See Clay v. Interstate Nat’l Corp., 900 F.Supp.
981, 990–91 (N.D. Ill. 1995) (Castillo, J.) (“expressions such as ‘you people’ and ‘your kind’ are
sometimes used to refer to a race as a group.”). The record also shows that the culmination of this
harassment unreasonably interfered with Alamo’s work performance because shortly after his
interaction with Capitan Stefan and on the heels of the co-worker harassment, Alamo went on a
voluntary medical lay-up for what he described and chest pains, stress, and anxiety. Looking at the
totality of the evidence, it is “significant that the harassment occurred in an atmosphere where
firefighters live and serve together and in which mutual interdependence is an essential factor in
effectiveness and, at times, survival.” Alamo, 864 F.3d at 551.
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Because Alamo has presented evidence creating a triable issue of fact as to the severe and
pervasive nature of the harassment, the Court examines the CFD’s argument concerning employer
liability. “Employers are strictly liable for the discriminatory acts perpetrated by supervisors and
they are liable for the discriminatory acts of others—coworkers, independent contractors,
customers, inmates etc.—only if they are negligent either in discovering or remedying the
harassment.” Johnson v. Advocate Health & Hosp. Corp., 892 F.3d 887, 904 (7th Cir. 2018). Under
Title VII, to be considered a supervisor, the individual must have had “the power to directly affect
the terms and conditions of the plaintiff's employment,” including “the authority to hire, fire,
promote, demote, discipline or transfer plaintiff.” Nischan v. Stratosphere Quality, LLC, 865 F.3d 922,
930 (7th Cir. 2017). Alamo does not address whether Captain Stefan was a supervisor under Title
VII, therefore, he has the burden of showing that the CFD knew of the national origin and racial
harassment and did did not act reasonably to remedy the issue as to both Captain Stefan and his coworkers. Johnson, 892 F.3d at 904.
The CFD argues that because Alamo did not file racial and national origin harassment
complaints through “well-established mechanisms for reporting complaints of discrimination,” it
cannot be held liable for failing to take corrective measures. Alamo, on the other hand, has
presented evidence that he complained to his supervisors of the harassment. For example, on a
form in evidence dated January 2, 2012, Alamo explains why he believes he was subjected to a
hostile work environment based on the September 2011 events with Captain Stefan and that he had
also submitted a Form 2 to the Internal Affairs Division (“IAD”). Alamo also filed a Form 2 to the
IAD dated February 22, 2013 explaining that Captain Stefan stated he didn’t like Alamo’s “kind.”
Other evidence of notice includes Lieutenant Bliss’ testimony that after Alamo informed him of the
incident with Captain Stefan, Bliss called Chief Steven Chikerotis to review the incident. Further,
Alamo testified at his deposition that he turned in numerous Form 2s to his chain of command
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about the harassment and that he reported the racial slurs and that other firefighters were throwing
away his food to his supervisor Lieutenant Bliss.
Despite the CFD’s argument to the contrary, this evidence creates a triable issue of fact that
demonstrates Alamo complained about the harassment to his supervisors and through the CFD’s
procedures. In the end, Alamo has present sufficient evidence that the CFD was negligent in
discovering and remedying the racial and national origin harassment. See Ford v. Marion County
Sheriff’s Office, 942 F.3d 839, 856 (7th Cir. 2019). The Court therefore denies defendants’ summary
judgment motion as to Alamo’s hostile work environment claim.
Disability Discrimination
Last, Alamo asserts that he experienced disability discrimination under the ADA and the
IHRA based on a perceived disability related to his PTSD and TBI. The Court first notes that
IHRA claims are analyzed under the same framework as an ADA disability discrimination claims.
Teruggi v. CIT Group/Capital Fin., Inc., 709 F.3d 654, 659 (7th Cir. 2013). To establish an
ADA/IHRA discrimination claim, a plaintiff must show that: (1) he is disabled within the meaning
of the ADA; (2) he was qualified to perform the essential functions of the relevant job with or
without reasonable accommodation; and (3) he suffered an adverse employment decision because of
his disability. Sandefur v. Dart, 979 F.3d 1145, 1151 (7th Cir. 2020). To succeed on an ADA claim of
“perceived impairment,” Alamo must present evidence that the CFD took an adverse action against
him based on its belief that his condition was an impairment as defined by the ADA. Richardson v.
CTA, 926 F.3d 881, 892 (7th Cir. 2019).
The Court turns to whether Alamo suffered an adverse employment decision based on the
perceived disabilities because it is dispositive. As discussed, in early 2017, the CFD’s medical
director Dr. Wong requested that Alamo undergo a fitness for duty evaluation based on Alamo’s
medical lay-ups for stress, erratic behavior, and disciplinary record. In February 2017, Dr. Rone
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concluded that Alamo was not fit for duty after conducting a psychological fitness evaluation. The
CFD’s request that Alamo, as a firefighter, submit to a fitness for duty evaluations was job-related
and consistent with the CFD’s Medical Procedure General Order. Indeed, it is not uncommon for
public safety agencies to require psychological evaluations of their employees and courts have found
such evaluations acceptable when used to determine an employee’s ability to perform his work
safely. See Freelain v. Village of Oak Park, 888 F.3d 895, 903 (7th Cir. 2018). As such, there was
nothing sinister about requesting Alamo to undergo a fitness for duty evaluation as Alamo suggests.
The CFD’s decision to discharge Alamo was not pretext for discrimination because when
Alamo exhausted his paid medical leave as provide by the CBA and had yet to be cleared to return
to work, the CFD gave him the choice of resigning or taking unpaid medical leave. When Alamo
failed to respond to these options, the CFD terminated his employment. Thus, the CFD’s decision
was not based on a perceived disability, but on Alamo running out of paid medical leave and his
decision not to take unpaid medical leave. In sum, construing the evidence and all reasonable
inferences in his favor, Alamo has not presented evidence casting doubt on the CFD’s reason for his
termination. Accordingly, the Court grants defendants’ summary judgment motion as to Alamo’s
disability claim brought under the ADA and the IHRA.
Conclusion
Based on the foregoing, the Court grants in part and denies in part defendants’ summary
judgment motion [223]. The remaining claim in this lawsuit is plaintiff’s hostile work environment
claim. The Court dismisses Charlie Bliss as a named defendant from this lawsuit.
IT IS SO ORDERED.

Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Court Judge

DATED: 2/18/2021
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