Vega v. Chicago Park District

Filing 215

MOTION by Defendant Chicago Park District for judgment as a matter of law (Attachments: # 1 Exhibit A-E)(McGarry, Annette)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
LYDIA VEGA,
Plaintiff,
v.
CHICAGO PARK DISTRICT,
Defendant.

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)
)
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) Case No. 13 CV 451
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) Judge Jorge L. Alonso
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)
)

CHICAGO PARK DISTRICT’S MOTION FOR
JUDGMENT AS A MATTER OF LAW
The Chicago Park District (“Park District”) moves for entry of judgment as
a matter of law in its favor on the claims of Lydia Vega (“Vega”) for national-origin
discrimination and retaliation under both Title VII and 42 U.S.C. § 1981.
I. INTRODUCTION
Vega has presented no admissible evidence from which a reasonable jury
could find either that that the Park District discriminated against her on the basis
of her Hispanic heritage, or that the Park District discharged her in retaliation for
her complaint of discrimination. Specifically:


Vega has presented no direct evidence that the Park District
discharged her because of her Hispanic ancestry.



Vega has presented no evidence that she was treated differently
from similarly-situated Caucasian or African-American park
supervisors.



Vega has presented no evidence that the Park District’s reason for
terminating her – falsification of her timesheets – was merely a
pretext.
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

Vega has presented no evidence that the Park District has a
practice of discriminating against Hispanics that is so widespread
and pervasive that it rises to the level of unwritten policy.



Vega has presented no evidence that she engaged in any
“protected activity” that might support a retaliation claim, or that the
persons who made the decision to discharge her were aware of any
protected activity before her termination.

Given the absence of any evidence from which a reasonable jury could
find discrimination or retaliation, this Court should enter judgment as a matter of
law in favor of the Park District, pursuant to Federal Rule of Civil Procedure 50.
II.

ARGUMENT

Rule 50 of the Federal Rules of Civil Procedure provides that a court may
enter judgment as a matter of law under the following circumstances:
If during a trial by jury a party has been fully heard on an issue and
there is no legally sufficient evidentiary basis for a reasonable jury
to find for that party on that issue, the court may determine the
issue against that party and may grant a motion for judgment as a
matter of law against that party with respect to a claim or defense
that cannot under the controlling law be maintained or defeated
without a favorable finding on that issue.
Fed. R. Civ. P. 50. Judgment as a matter of law is appropriate where no rational
jury could find for the plaintiff. Harvey v. Office of Banks and Real Estate, 377
F.3d 698 (7th Cir. 2004). Because Vega has failed to come forward with evidence
from which a rational jury could find in her favor, this Court should enter judgment
against her.
A. Vega Has Presented No Evidence of Discrimination.
To establish her claim for discrimination on the basis of ethnicity under
Title VII or 42 U.S.C. § 1981, Vega must introduce evidence sufficient to allow a
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reasonable juror to conclude that she would have kept her job if she were not
Hispanic, and everything else had remained the same. Ortiz v. Werner
Enterprises, Inc., 834 F.3d 760, 763-34 (7th Cir. 2016).
In Ortiz, the Seventh Circuit jettisoned the distinction between “direct” and
“indirect” methods, as well as the “convincing mosaic” approach, of establishing a
prima facie case of discrimination. 834 F.3d at 765. Nevertheless, Vega has
introduced no evidence – direct, indirect, circumstantial, mosaic or otherwise –
that could allow a reasonable juror to conclude that she was terminated because
she is Hispanic.
A plaintiff may attempt to prove discrimination by producing evidence such
as an explicit admission that the adverse employment action was motivated by
discrimination; or that she belongs to a protected class, was meeting the
employer’s legitimate expectations, suffered an adverse employment action, and
similarly situated employees outside her protected class received more favorable
treatment. Vega v. Chicago Park District, 165 F. Supp. 3d 693, 700-01 (N.D. Ill.
2016). The Park District stipulated that Vega belongs to a protected class and
suffered an adverse employment action. Vega, however, has failed to present
any evidence that the adverse employment action was tied to her status as a
Hispanic.
Vega has identified four persons involved in her investigation and
discipline: Leroi Catlin, Michael Hester, Mary Saieva and Michael Simpkins. Vega
introduced no evidence of any overt discriminatory comments or behavior by any
of these persons; indeed, she testified that there were none.

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Vega did not know whether the two investigators, Officers Hester and
Catlin, conducted investigations any differently for Hispanic employees than for
African-American, Caucasian or Asian employees. (Ex. B, 3-7-17 Tr. at 185-86)1
The investigators confirmed that they followed the same general procedure in
investigating Vega that they followed in conducting investigations of AfricanAmericans, Caucasians and Asians. (Ex. C, 3-8-17 Tr. at 123; Ex. D, 3-9-17 Tr.
at 95-96) Other witnesses testified that, during the investigators’ meetings with
Vega, they did not notice or recall any statements or conduct that indicated that
the investigators were biased against Vega based on her Hispanic heritage. (Ex.
A, 3-6-17 Tr. at 83, 84-85; Ex. E, 3-10-17 Tr. at 40-41) Furthermore, neither
Officer Catlin nor Officer Hester knew Vega prior to the investigation, and the
hotline calls did not identify Vega’s ethnicity. (Ex. C, 3-8-17 Tr. at 114-15; Ex. D,
3-9-17 Tr. at 86; PX 40; PX 41)
The investigators did not conclude that the complaints against Vega were
sustained, but instead referred their findings to management for investigation.
(Ex. C, 3-8-17 Tr. at 240; Ex. D, 3-9-17 Tr. at 71) The evidence was undisputed
that the investigators had no say in whether an employee should be disciplined,
or the type of discipline to be imposed. (Ex. D, 3-9-17 Tr. at 94)
Vega has argued that the investigation was “flawed.” However, “the
question in a discrimination case is not whether the employer’s stated
nondiscriminatory ground for the action of which the plaintiff is complaining is
correct but whether it is the true ground of the employer’s action rather than
Pertinent portions of the trial transcripts for March 6, March 7, March 8, March 9
and March 10 are attached as Exhibits A, B, C, D and E, respectively.
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being a pretext for a decision based on some other, undisclosed ground.”
Forrester v. Rauland-Borg Corp., 453 F.3d 416, 417 (7th Cir. 2006). Vega has not
presented any evidence suggesting how any alleged errors support an inference
of discrimination. See Smith v. Chicago Transit Authority, 806 F.3d 900, 907 (7th
Cir. 2015)(rejecting complaints of errors in investigation as insufficient to show
discriminatory intent).
Vega, in fact, acknowledged that during the course of the timesheet
investigation, Officer Catlin investigated a complaint that Vega had discriminated
against African-American park patrons and concluded that the complaint was
unfounded. (Ex. B, 3-7-17 Tr. at 187-88) That finding in Vega’s favor strongly
suggests that the investigators harbored no discriminatory animus toward her.
Vega testified that Mary Saieva, Human Resources Manager for the South
Region, did not say anything during her Corrective Action Meeting (“CAM”) to
suggest that Ms. Saieva was biased against her because she was Hispanic;
moreover, Vega presented no evidence that Ms. Saieva conducted CAMs any
differently for African-American, Caucasians or Asians. (Ex. B, 3-7-17 Tr. at 17677)
Vega testified that Michael Simpkins, the Park District’s Human Resources
Director, made the ultimate decision to discharge her. (Ex. B, 3-7-17 Tr. at 161)
Vega further confirmed that she did not know whether Mr. Simpkins was biased
against her as a Hispanic. (Ex. B, 3-7-17 Tr. at 162)
Moreover, Vega presented no evidence that similarly-situated nonHispanic employees were treated more favorably than she was. There was

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evidence concerning Lester Rivers, an African-American park supervisor who
was investigated for timesheet falsification by Officers Hester and Catlin, and
then terminated. (Ex. C, 3-8-17 Tr. at 117-18; Ex. D, 3-9-17 Tr. at 100) There
was testimony concerning Dina Rutledge, an African-American park supervisor
who was investigated for timesheet falsification by Officer Hester, and then
terminated. (Ex. D, 3-9-17 Tr. at 100-03) The only inference that can be drawn
from these comparators is that the Park District discharges park supervisors who
falsify their timesheets, regardless of race or national origin.
B. Vega Has Presented No Evidence of a Policy or Custom of
Discrimination Against Hispanics.
Because the Park District is a public employer, Vega must also establish
that any injury resulted from a municipal custom or policy. Vega v. Chicago Park
District, 958 F. Supp. 2d 943, 951 (N.D. Ill. 2013). The Seventh Circuit has not
adopted any bright line rules as to what constitutes widespread custom or policy,
except that the alleged unconstitutional conduct “must be more than one
instance.” Thomas v. Cook Co. Sheriff’s Dept., 604 F.3d 293, 303 (7th Cir.
2009)(citations omitted). In her amended complaint, Vega alleged that the Park
District had a “pattern and practice of discriminating against Hispanic female
Class A and Class B Park Supervisor employees,” and a “pattern and practice of
discriminating against Hispanic female employees in South Region, Area 6.”
(Doc. 10, ¶¶ 39, 50)
Vega has presented no evidence to support her allegations. Though she
had alleged that Martha Ramirez had been investigated by the Park District and
forced to retire, Ms. Ramirez’s trial testimony was far different. Ms. Ramirez was
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park supervisor at Rowan Park, and testified that she was not investigated or
disciplined by the Park District prior to her voluntary retirement in 2011. (Ex. B,
3-7-17 Tr. at 8, 9, 15-16) Vega offered the testimony of Elizabeth Millan, who is
Hispanic and testified that she was consistently promoted throughout her 30plus-year career with the Park District, ultimately retiring as the Park District’s
South Region Manager. (Ex. A, 3-6-17 Tr. at 35) Anita Gilkey testified that Maya
Solis, also Hispanic, was named manager of the South Region in 2016. (Ex. A, 36-17 Tr. at 46, 80) Ms. Gilkey further testified that she had other Hispanic park
supervisors in her area, and none had complained of discrimination, nor had they
been disciplined, to her knowledge. (Ex. A, 3-6-17 Tr. at 85-86) And Vega herself
testified that, prior to the Park District’s discovery of her timesheet falsification,
she was consistently promoted. (Ex. B, 3-7-17 at 58-59, 61) Vega’s discharge for
timesheet falsification, the only instance for which she presented evidence, is
insufficient as a matter of law to establish liability under §§ 1981 or 1983.
C. Vega Has No Evidence to Support Her Retaliation Claim.
To establish her retaliation claims under Title VII or §1981, Vega must
show that: (1) she engaged in a protected activity; (2) the Park District took an
adverse employment action against her; and (3) there was a causal connection
between the two. Vega v. Chicago Park District, 165 F. Supp. 3d at 702, 705.
Where the decision-maker does not know of the complaint, there can be no
causal connection between the complaint and any adverse employment decision.
See Hoppe v. Lewis University, 692 F.3d 833, 842 (7th Cir. 2012).

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Furthermore, a complaint made while the disciplinary process is underway
cannot form the basis for a retaliation claim: “[A] track record of job performance
issues prior to the employee’s protected activity does not establish circumstantial
evidence in support of a retaliation claim.” Curtis v. Costco Wholesale Corp., 807
F.3d 215, 221 (7th Cir. 2015); see also Long v. Teachers’ Ret. Sys. Of Ill., 585
F.3d 344, 354 (7th Cir. 2009)(“a decline in performance before the employee
engages in protected activity does not allow for an inference of retaliation”).
Vega testified that she does not know whether Mr. Simpkins or Alison
Perona received the letter she claims to have mailed on September 4, 2012
before she was terminated six days later. (Ex. B, 3-7-17 Tr. at 165) In fact, she
was unable to confirm that the letter was delivered to the Park District at all. (Ex.
B, 3-7-17 Tr. at 166) Therefore, Vega has failed to prove a causal connection
between any version of her September 4, 2012 letter2 and her termination.
Moreover, the September 4, 2012 letter cannot serve as a protected
activity supporting a retaliation claim. Witnesses repeatedly testified that the
investigation of Vega’s timesheet falsification began in September 2011;
surveillance was completed by February 2012; the investigators met with Vega
three times to flesh out the facts; and Vega attended two CAMs in July and
August 2012. Vega testified that during the disciplinary process, she was never
told that she would not be terminated. (Ex. B, 3-7-17 Tr. at 169-70) In fact, her
union representative, Charles Harper, testified that in his opinion, during Vega’s

The version of the letter attached to Vega’s amended complaint (Doc. 10,
Exhibit D) is in a different font and has fewer pages from that admitted as PX
219.
2

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CAMs it was a “foregone conclusion” that Vega would be disciplined. (Ex. E, 310-17 Tr. at 26) With the investigation complete and the disciplinary process well
under way, Vega wrote to Mr. Simpkins and Ms. Perona, acknowledging that she
was facing “discipline up to and including termination” and complaining of
“harassment.” (PX 219)
An employee in the midst of discipline and facing termination cannot draft
a letter, run it past her attorney, and toss it in the mail to protect herself from
inevitable discipline. Vega has failed to establish a causal connection between
the letter and her termination, and the timing of the letter does not allow for an
inference of retaliation. Moreover, Vega has not attempted to introduce evidence
suggesting any sort of widespread custom or policy of retaliation sufficient to
support a claim under §§ 1981 or 1983. The Park District is entitled to judgment
as a matter of law on Vega’s retaliation claims.
III. CONCLUSION
WHEREFORE, the Chicago Park District asks that the Court enter
judgment as a matter of law in its favor on all remaining counts of Vega’s
complaint.

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Respectfully submitted,
/s/ Annette M. McGarry
Annette M. McGarry (#6205751)
[e-mail]
Marianne C. Holzhall (#6204057)
[e-mail]
McGarry & McGarry, LLC
120 North LaSalle Street, Suite 1100
Chicago, IL 60602
[phone]
Attorneys for Chicago Park District

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