Eyiowuawi v. John H. Stroger's Hospital of Cook County

Filing 93

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 9/19/2017. Civil case terminated. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GBOLAHAN R. EYIOWUAWI,
Plaintiff,
v.
COUNTY OF COOK,
Defendant.

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Case No. 12-cv-6492
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Plaintiff Gbolahan R. A. Eyiowuawi brings suit against his former employer, Defendant
Cook County, for allegedly discriminating against him on the basis of his sex and national origin
and retaliating against him for filing discrimination complaints and an earlier lawsuit, in
violation of 42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e. Currently before the Court is
Defendant’s renewed motion for summary judgment [83]. For the following reasons, the Court
grants Defendant’s renewed motion for summary judgment [83]. As a housekeeping matter,
Plaintiff’s motion for leave to file a supplemental memorandum in response to Defendant’s
motion for summary judgment and Plaintiff’s request to continue as pro se [86] is stricken as
moot, as it is duplicative of Plaintiff’s motion [89], which the Court granted in part and denied in
part [91].1 The Court will issue final judgment and close the case.
I.

Background
The following facts are drawn primarily from the parties’ Local Rule 56.1 statements of

facts [57], [61], and [65].

1

The Court gave Plaintiff until May 31, 2017 to file a supplemental brief, [see 91], but Plaintiff failed to
do so.

A.

Plaintiff Applies for the Position of Home Transportation Supervisor

Plaintiff Gbolahan R.A. Eyiowuawi is a male of Nigerian descent. [57, at ¶ 2.] Plaintiff
worked for Defendant Cook County from April 1998 until his termination on June 29, 2005.
[Id.] Between May 22, 2000 and June 7, 2005, Plaintiff worked in the Cook County Health and
Hospitals (“CCHHS”) as a Scheduler Dispatcher in the Home Transportation Department within
the Ambulatory and Community Health Network of Cook County (“ACHN”). [Id., at ¶ 4.] The
Home Transportation Department was physically located at the far southeast corner of John H.
Stroger, Jr. Hospital. [Id.] Plaintiff was responsible for scheduling transportation for patients to
and from CCHHS, including John H. Stroger, Jr. Hospital or clinics. [Id., at ¶ 5.]
Dennis Chevalier worked as the Director of Social Work for ACHN from approximately
2003 until approximately 2008. [Id., at ¶ 6.] His responsibilities included managing the staff of
the Home Transportation Department. [Id.] In 2000, Chevalier interviewed and made the
decision to hire Plaintiff. [Id., at ¶ 7.]
In April 2003, there was an opening for the position of Home Transportation Supervisor.2
[65, at ¶ 2.] On April 3, 2003, Plaintiff submitted an application for this position to Chevalier.
[Id.] Neither Chevalier nor any other representative of Defendant interviewed Plaintiff for the
position or communicated with Plaintiff about his application. [Id.] Chevalier hired Martha
Jones to fill the Home Transportation Supervisor position. [57, at ¶ 9.] When she was hired,
Jones did not have any experience in transportation as far as dispatching and coordinating rides.
[61, at ¶ 3; 57, Exhibit C (Chevalier Deposition), at 19:14–23.] However, she had been working
for Defendant for many years. In total, Jones worked for Cook County for thirty-one years until
she retired on December 27, 2013. [57, at ¶ 8.] Prior to her promotion to Home Transportation
2

The parties refer to this position as “Supervisor” and “Coordinator,” interchangeably. For simplicity,
the Court only will use the term “Supervisor.”

2

Supervisor, Jones managed the daily operations of the Fantus Clinic, which included the Home
Transportation Department. Chevalier knew Jones to have superior administrative skills based
on her reputation for her work at the Fantus Clinic. [65, at ¶ 3; 57, Exhibit C, at 62:3–63:13.]
As Home Transportation Supervisor, Jones directly supervised the employees in the
Home Transportation Department, including Plaintiff and Sandra Bright, who also worked as a
Scheduler Dispatcher. [57, at ¶¶ 10–11.] Jones was Plaintiff’s immediate supervisor. [61, at
¶ 3.] Although Jones memorialized and communicated workplace incidents to Chevalier, she did
not function as the final decisionmaker in the disciplinary and grievance process of employees.
[57, at ¶ 10.] Chevalier was the only person with authority to discipline employees in the Home
Transportation Department. [Id., at ¶ 10.]
B.

Plaintiff’s 2003 Lawsuit

On September 17, 2003, Plaintiff filed a charge of national origin and sex discrimination
with the Equal Employment Opportunity Commission (“EEOC”). [Id., at ¶ 50.] It is undisputed
that Chevalier was unaware that Plaintiff filed this charge until after Plaintiff was terminated.
[Id., at ¶ 50.] On September 24, 2003, Plaintiff received a Right to Sue letter from the EEOC.
[Id., at ¶ 52.]
On December 24, 2003, Plaintiff filed a complaint in the U.S. District Court for the
Northern District of Illinois, Case No. 03-cv-9345, alleging sex and national origin
discrimination. [61, at ¶ 4.] Plaintiff named Chevalier and Jones as defendants, among others.
[Id.] Several of the allegations in the complaint concerned the conduct of Chevalier and Jones.
[Id.] Plaintiff contends that he mailed a copy of the 2003 complaint to each defendant, including
Chevalier and Jones. [Id.] Defendant disputes that Plaintiff mailed a copy of the 2003 complaint
to each defendant, including Chevalier and Jones, emphasizing that Chevalier and Jones

3

specifically denied any recollection of prior knowledge of any charges or lawsuits related to
Plaintiff. [65, at ¶ 4.] Additionally, no answer was ever filed in Plaintiff’s 2003 lawsuit.
Eiyowuwai v. John H Stroger Jr., No 03-cv-9435 (N.D. Ill. Dec. 24, 2003) [29].3 The district
court directed the U.S. Marshals Service to effectuate service on Plaintiff’s behalf, but, as the
Seventh Circuit noted, there is no indication in the record that Plaintiff ever delivered the
necessary paperwork or paid any required fees to the Marshals Service. [Id.; Eyiowuawi v. John
H. Stroger, Jr. Hosp. of Cook Cty., 146 F. App’x 57, 59 (7th Cir. 2005).] The district court set
the case for a status hearing, and an assistant state’s attorney appeared on behalf of Defendant
and notified the court that none of the defendants had been served. [Eyiowuawi, 146 F. App’x at
59.] Plaintiff failed to appear for the status hearing, and on April 21, 2004, the district court
dismissed the case for failure to prosecute. [Id.] The district court denied Plaintiff’s motion to
reconsider under Federal Rule of Civil Procedure 60(b), and on September 5, 2005, the Seventh
Circuit affirmed. [Id.]
C.

Plaintiff’s April 23, 2004 IDHR Charge

On April 23, 2004, Plaintiff filed charge number 2004-CF-3253 with the Illinois
Department of Human Rights (“IDHR”) alleging national origin discrimination, sex
discrimination, and retaliation. [57, at ¶ 55.] It is undisputed that Chevalier was unaware that
Plaintiff filed that charge. [Id., at ¶ 56.] Chevalier testified that he was unaware that Plaintiff
initiated any proceedings with the EEOC, IDHR, or court until after Plaintiff’s termination. [Id.,
at ¶ 56.] The charge specifically names Jones in several of its allegations. [65, at ¶ 5.] When
Jones was asked when she became aware of Plaintiff’s April 23, 2004 charge with the IDHR, she
3

As the Court did when it ruled on Defendant’s motion to dismiss, [see 34], the Court takes judicial
notice of Plaintiff’s relevant previous federal lawsuits, Eyiowuwai v. John H. Stroger, Jr., No 03-cv-9435
(N.D. Ill. Dec. 24, 2003) and Eyiowuawi v. Cook County, No. 05-cv-5213 (N.D. Ill. Sept. 12, 2005). See
Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080–81 (7th Cir. 1997).

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responded “probably in 2008.” [57, Exhibit D (Jones Deposition), at 21:23–22:1.] When
pressed if her testimony was that she was not made aware of the charge until four years after it
was filed, Jones stated, “I want to be truthful, but I can’t remember the date because most of the
stuff that I did was from 2008. I could have seen it sooner, but I am not sure.” [Id., at 22:2–9.]
In his deposition, Plaintiff could not recall whether he ever served anyone with this IDHR
charge. [57, at ¶ 60.] Plaintiff did not know whether Chevalier ever learned of this charge, and
he denied that any co-worker learned of this charge. [Id.] Plaintiff admits that no Cook County
employee, including Chevalier, Jones, Bright, or former co-worker Erma Brandy, ever spoke
with Plaintiff about his IDHR charge number 2004-CF-3253. [Id., at ¶ 61.]
After Plaintiff filed IDHR charge number 2004-CF-3253 on April 23, 2004, he remained
employed with Defendant until his termination on June 7, 2005. [Id., at ¶ 62.] Between April
23, 2004 and his suspension on June 7, 2005, Defendant never denied Plaintiff any promotion
opportunities, a requested transfer, or job or skills training, reduced his pay, nor did Defendant
ever discipline Plaintiff or otherwise change the terms and conditions of his employment. [Id.]
On his evaluation dated March 25, 2005, Plaintiff earned unsatisfactory performance grades.
Specifically, he was categorized as an “unsatisfactory performer” in the following areas:
(1) complies with patients’ rights/safety policy; respect and dignity for patients, families, and
visits; (2) demonstrates ability to be emotionally mature, objective and sensitive to people and
their problems; (3) develops observable and measureable goals and expected outcomes in the
areas of problem resolution, resource management, and patient satisfaction for each problem,
issue or concern; (4) accepts supervision and constructive comments in an appropriate matter.
[Id., at ¶ 63.] The evaluation was signed by Chevalier and Jones. [65, at ¶ 8.]

5

Additionally, Defendant had previously disciplined Plaintiff on seven other occasions:
(1) suspended for five days on February 21, 2002 for harassment and directed to receive Sexual
Harassment training by the Human Resources Department; (2) counseled on May 28, 2003 for
using sick time for court; (3) verbal reprimand on June 2, 2003 for returning late from lunch;
(4) suspended for one day on August 14, 2003 for patient abuse; (5) verbal reprimand on January
22, 2004 for violation of dress code policy, lateness, and lack of professionalism; (6) written
reprimand on February 24, 2004 for lateness; and (7) suspended twenty nine days on April 22,
2004 for mistreating or abusing employees, patients, or visitors, using profanity in the work area,
and intimidation of patients, employees, or visitors. [57, at ¶ 64.] Chevalier made the decision
to suspend Plaintiff for twenty nine days on April 22, 2004. [Id., at ¶ 65.]
D.

The June 7, 2005 Incident

Plaintiff and Bright were the only two dispatchers assigned to work together from
October 18, 2004 through June 7, 2005. [57, at ¶ 12.] Bright testified that on June 7, 2005,
while at work, she walked down an aisle between the front desk area and file cabinets toward the
refrigerator in the Home Transportation Department to retrieve her lunch. [57, at ¶ 13.] Bright
testified that Plaintiff blocked her by rolling his chair into her path and grabbing her arms tightly.
[Id.] Bright further testified that she was shocked and told Plaintiff to let her go. [Id., at ¶ 14.]
Bright testified that she broke away from Plaintiff by jerking away from him and that Plaintiff
seemed upset during the incident. [Id.] According to Bright, Plaintiff told her that he loved her
and that he wanted her to talk to him “because they’re trying to make” her not like him. Bright
testified that Plaintiff said, “they are trying to make you hate me. I just want you to talk to me,
talk to me,” and that she then “snatched away from him and told him to get his hands off.” her.
[Id., at ¶ 15; 57, Exhibit E (Bright Deposition), at 19:18–20:5.] Bright went to the cafeteria for

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her lunch break. [Id.] Bright testified that when she returned from her lunch break, she
proceeded to go back to the refrigerator, and Plaintiff again slid his chair into her path and
grabbed her. [Id., at ¶ 16.] According to Bright, Plaintiff again told her that he loved her and
that he wanted her to talk to him. [Id.] Bright testified that Johnnie Walker and Irving Wright
witnessed this incident. [Id., at ¶ 17.] Bright testified that she was upset, angry, intimidated, and
frightened by the incident. [Id., at ¶ 18.] Bright reported the incident to the hospital police and
contacted Jones and Chevalier. [Id.]
Plaintiff denies that he blocked Bright’s path, grabbed her arms, or said that he loved her.
[61, at ¶ 13–14; 63, Exhibit 1 (Eyiowuawi Affidavit).] According to Plaintiff, he was upset
because he wanted to remain friends with Bright and did not want Bright to dislike him because
of Jones. [Id., at ¶ 14.] Plaintiff admits that he approached Bright when she was getting her
lunch on June 7, 2005 and expressed concern that Jones was trying to make Bright dislike him.
[Id., at ¶ 15.] Plaintiff admits that Bright went to the cafeteria for her lunch break but denies
blocking her path and grabbing her arms when she returned. [Id., at ¶ 16.]
E.

The Investigation of the June 7, 2005 Incident

Jones participated in investigating the June 7, 2005 incident. [57, at ¶ 19.] She asked
Bright to write a statement and collected statements from two eyewitnesses employed by
Chicago Medicar: a driver named John Walker, and a dispatcher named Irving Wright. [Id.]
Wright’s statement says, “On Tuesday, June 7, 2005 at approximately 2:51 p.m., I heard
[Plaintiff] say to Sandra [Bright] in the work area that he loved her and can’t nobody stop him
from loving her.” [38-1, Exhibit 2.] Walker’s statement reads:
On Tuesday, June 14, 2005 at approximately 11:20 a.m., Chicago Medicar driver
Johnnie Walker came into the Home Transportation area and stated to Sandra
Bright that he did not know that she was a fatal attraction. He saw [Plaintiff]
coming out of Stronger Hospital pulling a briefcase and his hat on backward. Mr.
7

Walker stated that he said to [Plaintiff] “man you must be on vacation,” that’s
when [Plaintiff] tried to explain what had happened. Mr. Walker stated that
[Plaintiff] told him that “he did not want to come back because that would be
nothing but trouble and tell Sandra [Bright] that he loves her and do not tell Ms.
Jones.”
[38-1, Exhibit 3.] Jones later provided Chevalier with a letter documenting this incident. [Id.]
Chevalier investigated the incident and interviewed Plaintiff and Bright. [Id., at ¶ 20.] Chevalier
testified that Plaintiff admitted that he told Bright that he loved her, that “nobody can stop him,”
and that he restricted her movements. [Id.; 57, Exhibit C, at 57:7–58:5; 70:4–71:8.] Plaintiff
contends that Chevalier spoke with him about the incident but that Plaintiff never told Chevalier
that he physically restrained Bright, blocked her way with his chair, grabbed her by the wrists, or
said that he loved her. [61, at ¶ 20; 63, Exhibit 1, at ¶ 13.]
After conducting an investigation, Chevalier believed that there was credible evidence
that Plaintiff violated the CCHHS policy on sexual harassment. [57, at ¶ 21.] On June 7, 2005,
John H. Stronger, Jr. Hospital had in effect a Sexual Harassment Policy that prohibited sexual
harassment. [Id., at ¶ 22.] The hospital also had in effect Rules and Regulations Governing
Employee Conduct, which stated that major cause infractions may be punishable by immediate
termination rather than progressive discipline. [Id., at ¶ 23.] It is a major cause infraction for an
employee to mistreat or abuse a co-worker. [Id., at ¶ 24.] It is also a violation of the personnel
rules to commit a major cause infraction or to intimidate or coerce another employee through
physical or verbal threats. [Id., at ¶ 25.] Plaintiff was aware of the Sexual Harassment Policy
and the Rules and Regulations for employee conduct. [Id., at ¶ 26.] Chevalier and Jones
discussed the incident and decided that it was “the final straw.” [65, at ¶ 15.] Accordingly,
Chevalier recommended Plaintiff’s termination. [Id.] Jones was not the final decisionmaker in
the disciplinary and grievance process of employees. [57, at ¶ 10.]

8

Plaintiff contends that there were one or more video surveillance cameras in the area
where Plaintiff worked on the day of the incident and that “to the best of Plaintiff’s knowledge,
the video camera(s) would have recorded all or part of the encounter that took place between
Plaintiff and Bright.” [65, at ¶ 14.] However, neither Chevalier nor Jones reviewed the video
recording. [Id.] Chevalier testified that he believed “the video surveillance is situated in such
[sic] that it’s really just looking at the patient seating area.” [Id.] Jones similarly testified that
the video surveillance camera was in the patient care area and would only show the patient care
area. [Id.] According to Jones, the video would not show anything that happened behind the
desk. [Id.] Jones also testified that she asked for the footage from the chief of the hospital
police. [Id.]
As a result of the June 7, 2005 incident, Plaintiff was placed on administrative leave on
June 7, 2005, pending a disciplinary hearing. [57, at ¶ 27.] On June 17, 2005, Jesus Estrada,
Director of Cermak Health Services, presided as hearing officer of Plaintiff’s disciplinary
hearing where Defendant charged Plaintiff with the following: (1) violation of the Cook County
Sexual Harassment Policy; (2) violation of the Cook County Rules and Regulations; and
(3) intimidating or coercing another employee through physical or verbal threats. [Id., at ¶ 28.]
Chevalier represented management at this hearing and recommended Plaintiff’s termination.
Hearing Officer Estrada was free to reject, accept, or modify Chevalier’s recommendation. [Id.]
Present at the hearing were Plaintiff, Plaintiff’s union representatives, Chevalier, Jones, and
management representatives, Sydney Thomas, Gayla Holley, and Tom Jablonski. [Id., at ¶ 29.]
At the hearing, Bright testified as to the events on June 7, 2005. [Id., at ¶ 30.] Plaintiff
was not allowed to ask Bright any questions after she testified. [65, at ¶ 16.] Plaintiff was not
given a copy of the charges against him, nor the written statement that had been prepared by

9

Bright, until the day of the disciplinary hearing, but he was aware that he was being accused of
sexual harassment. [See id.] On June 24, Hearing Officer Estrada found that Cook County
proved the charges against Plaintiff and recommended Plaintiff’s termination. Estrada’s write-up
of his findings states: “There are no questions as to the fact that there was a conversation
between you and Ms. Bright on June 7, 2005. By your own admission you physically block her
ability to leave the area. You [sic] during the course of this conversation you physically touched
Ms. Bright.” [57, Exhibit H, at 2; 57, at ¶ 31.] Plaintiff contends that at the hearing, he never
said that he had physically blocked or touched Bright on June 7, 2005. [61, at ¶ 31.] On June
29, 2005, Gayla Holley, Director of Human Resources, ACHN, notified Plaintiff that as a result
of the findings of his pre-disciplinary hearing, Plaintiff was terminated. [57, at ¶ 33.]
F.

Procedural History

On July 7, 2005, Plaintiff filed charge 2006-CF-0024 with the IDHR alleging that Cook
County retaliated against him for filing an earlier charge of discrimination dated April 23, 2004.
[57, at ¶ 34.] On July 14, 2005, the IDHR charge was sent to the EEOC for dual filing purposes
under EEOC Charge Number 21B-2005-02523. 4 [Id, at ¶ 35.] On May 3, 2012, Plaintiff
requested from the EEOC a right to sue letter for Charge Number 21B-2005-02523. [57, at

4

On September 28, 2007, Plaintiff filed a new complaint for charge number 2006-CF-0024 with the
Illinois Human Rights Commission. [Id., at ¶ 36.] On November 18, 2011, the Administrative Law
Judge entered a recommended order and decision granting Defendant Cook County’s motion for
summary judgment on charge 2006-CF-0024. On April 4, 2014, the Illinois Human Rights Commission
entered this decision as a final order. Plaintiff never appealed this decision. [Id., at ¶ 37.]
On September 12, 2005, Plaintiff filed a second lawsuit in the U.S. District Court for the Northern
District of Illinois. [Id., at ¶ 38; see also Eiyowuawi v. Cook County, No. 05-cv-5213 (N.D. Ill. Sept. 12,
2005).] Plaintiff alleged that he was fired as retaliation for filing a charge with the IDHR. [57, at ¶ 38.]
On November 2, 2005, Judge Gettleman granted Defendant’s motion to dismiss and dismissed Plaintiff’s
suit with leave to reinstate upon exhaustion of state administrative remedies. [Id., at ¶ 39.] Plaintiff
moved to reinstate on April 9, 2012, but Judge Gettleman denied Plaintiff’s motion on June 21, 2012.
[Id., at ¶ 40; Eyiowuawi v. Cook County, No. 05-cv-5213 (N.D. Ill. June 21, 2012) [35].]

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¶ 41.] On June 28, 2012, the EEOC sent Plaintiff a Notice of Right to Sue under Charge Number
21B-2005-02523. [Id., at ¶ 42.]
Plaintiff brought this lawsuit on August 16, 2012 and filed an amended complaint [27] on
June 10, 2013. Defendant moved for summary judgment, arguing that Plaintiff is not the real
party in interest under Federal Rule of Civil Procedure 17(a) because Plaintiff filed for Chapter 7
bankruptcy after his retaliation claim in this case accrued against Defendant, and thus the trustee
of Plaintiffs bankruptcy estate has exclusive possession of the legal right to enforce the claims
raised in this lawsuit. The Court denied Defendant’s motion for summary judgment without
prejudice and stayed the case pending Plaintiff’s attempt to reopen his Chapter 7 proceedings
before the U.S. Bankruptcy Court for the Northern District of Georgia. [72.] On July 25, 2016,
Plaintiff filed a status report informing the Court that Plaintiff filed a motion to reopen his case
in the U.S. Bankruptcy Court for the Northern District of Georgia and that the Bankruptcy
Trustee had decided to administer Plaintiff’s claim against Defendant as part of the bankruptcy
estate. [76.] On January 5, 2017, Defendant renewed its motion for summary judgment [83],
which is now before the Court.
II.

Legal Standard
Summary judgment is proper where there is “no dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of
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 (1986). The party
seeking summary judgment has the burden of establishing the lack of any genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In evaluating a motion for
summary judgment, the Court will construe all facts in the light most favorable to the nonmoving

11

party and draw all reasonable inferences in favor of the nonmoving party. Bell v. Taylor, 827
F.3d 699, 704 (7th Cir. 2016). However, the Court will not draw inferences that are “supported
by only speculation or conjecture,” Williams v. Brooks, 809 F.3d 936, 944 (7th Cir. 2016)
(quoting Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)) (internal citations
omitted), and “[c]onclusory allegations alone cannot defeat a motion for summary judgment.”
Thomas v. Christ Hosp. & Med. Ctr., 328 F.3d 890, 892 (7th Cir. 2003).
It is not the role of the Court to scour the record in search of evidence to defeat a motion
for summary judgment; instead, the nonmoving party bears the responsibility of identifying
evidence to defeat summary judgment. Harney v. Speedway SuperAmerica, LLC, 526 F.3d
1099, 1104 (7th Cir. 2008). To avoid summary judgment, the nonmoving party must go beyond
the pleadings and “set forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 250. Summary judgment is proper if the nonmoving party “‘fails to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.’” Ellis v. CCA of Tennessee LLC, 650
F.3d 640, 646 (7th Cir. 2011) (quoting Celotex, 477 U.S. at 322). The non-moving party “must
do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other
words, the “mere existence of a scintilla of evidence in support of the [non-movant’s] position
will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252.
II.

Analysis
Defendant moves for summary judgment, arguing that no reasonable factfinder could

conclude that Defendant retaliated against Plaintiff as a result of any protected conduct. As an

12

initial matter, Defendant argues, and Plaintiff does not dispute, that Plaintiff’s claim is limited to
the scope of Plaintiff’s July 14, 2005 EEOC Charge Number 21B-2005-02523. The Court
agrees. A plaintiff is barred from raising a claim in district court that has not been raised in an
EEOC charge, unless the claim is “reasonably related to one of the EEOC charges and can be
expected to develop from an investigation into the charges actually raised.” Green v. Nat’l Steel
Corp., Midwest Div., 197 F.3d 894, 898 (7th Cir. 1999) (citing Cheek v. Western & Southern Life
Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)). “This rule serves the dual purpose of affording the
EEOC and the employer an opportunity to settle the dispute through conference, conciliation,
and persuasion, and of giving the employer some warning of the conduct about which the
employee complains.” Patterson v. Triangle Tool Corp., 2016 WL 5374123, at *2 (E.D. Wis.
Sept. 26, 2016). “Allegations outside the body of the charge may be considered when it is clear
that the charging party intended the agency to investigate the allegations.” Cheek, 31 F.3d at
502.
Here, the Plaintiff received from the EEOC a Notice of Right to Sue under Charge
Number 21B-2005-02523. In that charge, Plaintiff alleges that his suspension and termination in
June 2005 were in retaliation for having filed charge number 2004-CF-3253 with the IDHR on
April 23, 2004, in which Plaintiff alleged national origin discrimination, sex discrimination, and
retaliation. Consequently, the scope of this lawsuit is limited to the issue of Title VII retaliation,
and the Court grants summary judgment for Defendant on Plaintiff’s claims of national origin
and sex discrimination. See Ekanem v. Health And Hospital Corp., 724 F.2d 563, 573 (7th Cir.
1983) (“A charge that a given wage is too low because of unlawful retaliation is not the same as
a charge that a given wage is too low because of unlawful race discrimination.” (emphasis in
original)); cf. Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 544–45 (7th Cir. 1988) (plaintiff’s

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retaliation claim was outside the scope of the charge of age discrimination because it “injects an
entirely new theory of liability into the case alleging unlawful activity of much different nature
than the age discrimination alleged in the charge”).
The Court now turns to the merits of Plaintiff’s retaliation claim. Title VII prohibits
retaliation against employees who engage in statutorily protected activity by opposing an
unlawful employment practice or participating in the investigation of one. 42 U.S.C. § 2000e–
3(a); Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016). To prevail on a
Title VII retaliation claim, a plaintiff must prove that (1) he engaged in protected activity, (2) he
suffered an adverse employment action, and (3) there is causal link between the two. Lord, 839
F.3d at 563. Here, the parties agree that the first two prongs of this test are satisfied. Plaintiff
engaged in protected activity when he filed charge number 2004-CF-3253 with the IDRH on
April 23, 2004 alleging national origin and sex discrimination. Coleman v. Donahoe, 667 F.3d
835, 859 (7th Cir. 2012) (noting that the plaintiff’s formal EEOC charges were “the most
obvious form of statutorily protected activity” (citation and internal quotation marks omitted)).
Additionally, Plaintiff suffered an adverse employment action when Defendant terminated him
on June 29, 2005.
The parties dispute only whether Plaintiff can satisfy the third required element and
demonstrate that he was terminated in June 2005 because of his IDRH charge of April 23, 2004.
A retaliation claim requires proof of but-for causation. Lord, 839 F.3d at 563 (citing Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013)). The Seventh Circuit recently
jettisoned the long-standing practice of distinguishing between the “direct” and “indirect”
methods of analyzing retaliation claims. Ortiz v. Werner Enters., Inc., 834 F.3d 760, 763–66
(7th Cir. 2016). Ortiz instructs courts to focus on a more straightforward inquiry: “Does the

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record contain sufficient evidence to permit a reasonable fact finder to conclude that retaliatory
motive caused the discharge?” Lord, 839 F.3d at 563; see also Ortiz, 834 F.3d at 765 (“Th[e]
legal standard * * * is simply whether the evidence would permit a reasonable factfinder to
conclude that the plaintiff’s * * * proscribed factor caused the discharge or other adverse
employment action.”). The Court is to consider the evidence as a whole, rather than asking
whether any particular piece of evidence proves the case by itself. Id.
Direct evidence, such as an admission by the employer of unlawful animus, is sufficient
to demonstrate a causal connection, but rare. Baines v. Walgreen Co., 863 F.3d 656, 661 (7th
Cir. 2017). A plaintiff may “also supply the causal link through circumstantial evidence from
which a jury may infer intentional discrimination.” Id. (citation and internal quotation marks
omitted). Circumstantial evidence may include suspicious timing, ambiguous statements or
behavior towards protected employees, evidence, statistical or otherwise, that similarly situated
employees systematically receive better treatment, evidence that the employer offered a
pretextual reason for an adverse employment action, and any other relevant information that
could permit an inference of retaliation. See Dickerson v. Bd. of Trustees of Cmty. Coll. Dist.
No. 522, 657 F.3d 595, 601 (7th Cir. 2011); Rao v. Gondi, 2017 WL 2445131, at *20 (N.D. Ill.
June 5, 2017).
Here, there is no direct evidence that Defendant terminated Plaintiff because of his IDHR
charge. Instead, Chevalier testified that he made the recommendation to terminate Plaintiff after
investigating the June 7, 2005 incident between Plaintiff and Bright. Turning to circumstantial
evidence, Plaintiff argues that Defendant’s proffered reason for terminating Plaintiff was
pretextual.

In determining whether an employer’s proffered reason for adverse action is

pretextual, the relevant question “is not whether the employer’s stated reason was inaccurate or

15

unfair, but whether the employer honestly believed the reasons it has offered to explain the
discharge.” Coleman, 667 F.3d at 852 (citation and internal quotation marks omitted). “It is not
the court’s concern that an employer may be wrong about its employee’s performance, or may be
too hard on its employee. Rather, the only question is whether the employer’s proffered reason
was pretextual, meaning that it was a lie.” Id. (citation and internal quotation marks omitted).
To meet this burden, the plaintiff must “identify such weaknesses, implausibilities,
inconsistencies, or contradictions” in the employer’s asserted reason “that a reasonable person
could find [it] unworthy of credence.” Id. (citation and internal quotation marks omitted).
Here, Defendant’s proffered reason for terminating Plaintiff is the June 7, 2005 incident
with Bright and Plaintiff’s alleged violation of the Cook County Sexual Harassment Policy,
violation of the Cook County Rules and Regulations, and intimidation or coercion of another
employee through physical or verbal threats.

Plaintiff argues that “the manner in which

Defendant handled the matter supports Plaintiff’s claim of pretext.” [62, at 11.] Plaintiff
contends that Defendant terminated Plaintiff despite his denials, despite the lack of witness
collaboration, and without viewing available video evidence. Plaintiff further argues that the
disciplinary hearing was “one-sided” because he was not allowed to ask Bright any questions
after she testified, and he was not given a copy of the charges against him or the written
statement that had been prepared by Bright until the day of the disciplinary hearing. According
to Plaintiff, this “one-sided nature of the hearing indicates that its purpose was not to make an
impartial assessment of the facts, but rather to rubber stamp a termination decision that had
already been made.” [62, at 11.]
The Court does not find Plaintiff’s pretext argument convincing.

First, the Court

disagrees that Walker’s and Wright’s statements contradict Bright’s allegations that Plaintiff

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sexually harassed her. Although the statements do not contain as much detail as Bright’s
testimony regarding the incident and do not specifically state that the witnesses saw Plaintiff
physically restrain Bright, the statements are consistent with Bright’s allegations and indicate
that Plaintiff told Bright that he loved her. Additionally, although Plaintiff was not given a copy
of the charges against him prior to the disciplinary hearing, he admitted that he was aware that
Bright had accused him of sexual harassment. [65, at ¶ 16; see also 57, Exhibit B, at 173:13–20.]
Further, Plaintiff’s argument that Defendant’s failure to view the video evidence demonstrates
pretext fails because Chevalier or Jones offered uncontroverted testimony that the camera only
recorded the patient care area and did not record the events behind the desk where Plaintiff and
Bright were located. Thus, although Plaintiff may dispute Bright’s allegations and contend that
the evidence did not merit his termination, Plaintiff fails to offer any evidence that Defendant or
Chevalier, who recommended Plaintiff’s termination, did not honestly believe that termination
was warranted after the investigation of the incident. Even assuming, arguendo, that Defendant’s
determination that Plaintiff harassed Bright on June 7, 2005 was incorrect, the relevant inquiry
for the pretext analysis “is not whether the employer’s stated reason was inaccurate or unfair, but
whether the employer honestly believed the reasons it has offered to explain the discharge.”
Coleman, 667 F.3d at 852 (citation and internal quotation marks omitted); Boston v. U.S. Steel
Corp., 816 F.3d 455, 465 (7th Cir. 2016) (explaining that regardless of whether it is correct in its
beliefs, if an employer acted with an honest belief, the court will not second guess the
employer’s employment decisions under Title VII). It is undisputed that after conducting an
investigation, Chevalier believed that there was credible evidence that Plaintiff violated the
CCHHS policy on sexual harassment.

[57, at ¶ 21.]

Therefore, Plaintiff has failed to

demonstrate that Defendant’s proffered reason for terminating Plaintiff was pretextual.

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Plaintiff also fails to set forth other circumstantial evidence from which a reasonable trier
of fact could conclude that he was terminated because of his protected activity. Plaintiff argues
that “the fact that a year and two months had passed between the date Plaintiff filed his IDHR
charge on April 23, 2004 and the date he was terminated is not dispositive.” [62, at 10.]
However, the Seventh Circuit has explained that “[t]he inference of causation weakens as the
time between the protected expression and the adverse action increases, and then additional proof
of a causal nexus is necessary.” Malin v. Hospira, Inc., 762 F.3d 552, 560 (7th Cir. 2014)
(quoting Oest v. Illinois Dep’t of Corrections, 240 F.3d 605, 616 (7th Cir. 2001)); see also
Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 481 (7th Cir. 2010) (year-long gap is
insufficient evidence of causal connection when plaintiff presented “no other factual or legal
theory linking [protected activity] to her termination”). Plaintiff has not set forth evidence of a
causal nexus.
Plaintiff also argues that on March 25, 2005, after he filed his April 23, 2004 IDHR
charge, he received an unfavorable evaluation signed by Jones and Chevalier, and that “[a] bad
evaluation may constitute part of the ‘bits and pieces’ of circumstantial evidence from which a
retaliatory intent can be inferred.” Coleman, 667 F.3d at 860. However, a reasonable trier of
fact could not infer retaliatory intent from this performance evaluation, which was given eleven
months after Plaintiff filed his IDHR charge and is entirely consistent with Plaintiff’s undisputed
disciplinary history. Further, as discussed below, Plaintiff’s performance evaluation is evidence
that he was not meeting his employer’s legitimate expectations.
Even more problematic for Plaintiff is the fact that he does not present any evidence that
Chevalier and Jones were aware of his April 23, 2004 IDHR charge prior to his termination. An
employer “must have had actual knowledge of the complaints for [its] decisions to be

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retaliatory.” Luckie v. Ameritech Cop., 389 F.3d 708, 715 (7th Cir. 2004); accord Nagle v. Vill.
of Calumet Park, 554 F.3d 1106, 1122 (7th Cir. 2009). “[I]f an employer did not know the
plaintiff made any complaints, it cannot be trying to penalize him for making them.” Tomanovich
v. City of Indianapolis, 457 F.3d 656, 669 (7th Cir. 2006) (citation and internal quotation marks
omitted). Here, it is undisputed that Chevalier, who recommended Plaintiff’s termination to the
disciplinary hearing officer, was unaware that Plaintiff filed charge 2004-CF-3253 with the
IDHR on April 23, 2004 alleging national origin discrimination, sex discrimination, and
retaliation, and Chevalier testified that he was unaware that Plaintiff initiated any proceedings
with the EEOC, IDHR, or court until after Plaintiff’s termination. Jones testified that she
became aware of Plaintiff’s April 23, 2004 IDHR charge “probably in 2008.”5 [57, Exhibit D, at
21:23–22:1.]
Plaintiff argues that Jones and Chevalier were directly involved in the incidents of
discrimination cited by Plaintiff in his EEOC and IDHR charges, and it “strains credulity to
believe that the Defendant would respond to [Plaintiff’s EEOC and IDHR] charges without
contacting the individuals directly involved.” [62, at 9.] Plaintiff also emphasizes that Jones and
Chevalier were named as defendants in Plaintiff’s 2003 lawsuit, and Plaintiff contends that he
mailed a copy of the complaint to each defendant. However, Plaintiff’s arguments are no more
than speculation, as Plaintiff has not offered any admissible evidence supporting his allegation
that Jones and Chevalier knew about his April 23, 2004 IDHR charge. In his deposition,
Plaintiff could not recall whether he ever served anyone with this IDHR charge. Further,
5

When pressed if her testimony was that she was not made aware of the charge until four years after it
was filed, Jones stated, “I want to be truthful, but I can’t remember the date because most of the stuff that
I did was from 2008. I could have seen it sooner, but I am not sure.” [57, Exhibit D, at 22:2–9.]
However, the Court notes that even if Jones was aware of Plaintiff’s IDHR charge prior to 2008, this does
not save the day for Plaintiff, as Jones was not the final decisionmaker, and Plaintiff still has failed to set
forth evidence from which a reasonable factfinder could conclude that there is a causal link between
Plaintiff’s IDHR charge and his termination.

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Plaintiff admitted that no employee of Defendant, including Jones or Chevalier, ever spoke with
Plaintiff about his April 23, 2004 IDHR charge. Regarding the 2003 lawsuit, the Seventh Circuit
concluded that there was no evidence in the record that the defendants had ever been served.6
Eyiowuawi v. John H. Stroger, Jr. Hosp. of Cook Cty., 146 F. App’x 57, 59 (7th Cir. 2005).
Without evidence that Chevalier or Jones knew about Plaintiff’s protected conduct, there is no
evidence from which a rational trier of fact could conclude that Defendant retaliated against
Plaintiff for his statutorily protected activity. See Moore-Fotso v. Bd. of Educ. of the City of
Chicago, 211 F. Supp. 3d 1012, 1039 (N.D. Ill. 2016), reconsideration denied, 2017 WL
1833152 (N.D. Ill. May 8, 2017) (granting summary judgment for defendant on plaintiff
teacher’s retaliation claim where plaintiff did not present any evidence that principal that
recommended teachers for hire was aware of her protected activity).
Additionally, Plaintiff cannot succeed on his retaliation claim under the McDonnell
Douglas burden-shifting framework.

Because Ortiz does not remove the burden-shifting

McDonnell Douglas framework from the set of means by which a plaintiff may defeat summary
judgment, Plaintiff may attempt prove retaliation by showing that in addition to engaging in
protected activity and suffering a materially adverse employment action, “he was meeting his
employer’s legitimate expectations; and * * * he was treated less favorably than similarlysituated employees who did not engage in protected activity.” Zegarra v. John Crane, Inc., 218
F. Supp. 3d 655, 671 (N.D. Ill. 2016) (quoting Boss v. Castro, 816 F.3d 910, 918 (7th Cir.
2016)); see also Ortiz, 834 F.3d at 766.

Once Plaintiff establishes a prima facie case of

retaliation, the burden shifts to the employer to articulate “a legitimate” reason for the
employee’s termination.” Peele v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir. 2002).
6

The Court also notes that even if Plaintiff had served Jones and Chevalier in his 2003 lawsuit, this does
not show that Jones and Chevalier knew about his April 23, 2004 IDHR charge, which is the subject of
Plaintiff’s EEOC Charge Number 21B-2005-02523 and this current lawsuit.

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“An employer that has proffered a legitimate, non-discriminatory reason for the discharge is
entitled to summary judgment unless the plaintiff presents evidence that the proffered reasons are
pretexts for discrimination.” Collier v. Budd Co., 66 F.3d 886, 889 (7th Cir. 1995).
Here, Plaintiff has not offered any evidence that he met his employer’s legitimate
employment expectations. In fact, Plaintiff received unsatisfactory performance ratings on his
March 25, 2005 evaluation and was disciplined on seven other occasions while working as a
Dispatcher Scheduler prior to June 7, 2005. Further, after Plaintiff’s disciplinary hearing, the
hearing officer concluded that as a result of the June 7, 2005 incident involving Bright, Plaintiff
violated the Cook County Sexual Harassment Policy and the Cook County Rules and
Regulations, and intimidated or coerced another employee through physical or verbal threats.
Thus, no reasonable factfinder could conclude that Plaintiff was meeting his employer’s
legitimate employment expectations. Additionally, Plaintiff does not attempt to establish that
any similarly situated employees that engaged in protected conduct received more favorable
treatment than Plaintiff. Thus, Plaintiff has not established a prima facie case of retaliation
under the McDonnell Douglas framework, and the burden does not shift to Defendant to
articulate a legitimate reason for Plaintiff’s termination. Further, even if Plaintiff had been able
establish a prima facie case of retaliation, the Court already has concluded that Defendant’s
proffered reason for terminating Plaintiff—the June 7, 2005 incident with Bright—is not
pretextual.
In sum, assessing cumulatively all of the evidence presented by Plaintiff and viewing the
evidence as a whole, in the light most favorable to Plaintiff as the Court must, no reasonable
factfinder could conclude that Defendant terminated Plaintiff in retaliation for his April 23, 2004

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IDHR charge. For all of these reasons, Defendant’s motion for summary judgment [83] is
granted.
III.

Conclusion
For the reasons stated above, the Court grants Defendant’s motion for summary judgment

[83]. As a housekeeping matter, Plaintiff’s motion for leave to file a supplemental memorandum
in response to Defendant’s motion for summary judgment and Plaintiff’s request to continue as
pro se [86] is stricken as moot, as it is duplicative of Plaintiff’s motion [89], which the Court
granted in part and denied in part [91]. The Court will issue final judgment and close the case.

Dated: September 19, 2017

_________________________________
Robert M. Dow, Jr.
United States District Judge

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