Martin et al v. F.E. Moran, Inc., Fire Protection of Northern Illinois

Filing 280

MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 4/10/2017. The Court denies FPN's Motions for Summary Judgment against Martin 193 , Truesdell 197 , and Tejada 201 . Mailed notice(lk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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Kenneth Martin, et al.,
Plaintiff,
v.
F.E. Moran, Inc., Fire
Protection of Northern Illinois,
Defendant.

No. 13 C 03526
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Plaintiff Kenneth Martin, Aaron Truesdell, and Johnny Tejada, filed this action against
F.E. Moran Inc., Fire Protection of Northern Illinois (FPN) alleging discriminatory employment
practices. Martin, Truesdell and Tejada bring two counts each, one under Title VII and one
under 42 U.S.C. § 1981, based on their layoffs as well as FPN’s failure to transfer or rehire them.
Tejada brings two additional counts, under the same statutes, for wage discrimination.1 FPN
moves for summary judgment on all counts with respect to all three Plaintiffs. For the foregoing
reasons, FPN’s motions are denied. (Dkt. 193, 197, 201.)
FACTS
The following facts are undisputed unless otherwise noted. FPN is an Illinois corporation
headquartered in Northbrook, Illinois, that installs, inspects, tests, and maintains fire protection
sprinkler systems in commercial and residential facilities. (Dkt. No. 21 at ¶¶ 8, 9.) In the
sprinkler fitter industry, employees are typically laid off when a project ends; then the sprinkler
1

Count I: alleges layoffs and failure to transfer or recall pursuant to Title VII;Count II: alleges a wage
discrimination claim in violation of Title VII; Count III: alleges a violation of 42 U.S.C. §1981 by
Plaintiffs Martin, Truesdell, and Tejada; ; Count IV alleges a wage claim in violation of 42 U.S.C. §1981.

1

fitter may be transferred or rehired to another project. (Def.’s SMF at ¶ 28.) FPN does not have
a specific hiring policy; sprinkler fitters usually obtain employment at FPN by calling a
superintendent and/or the superintendent calling the sprinkler fitter. (Def.’s SMF at ¶¶ 28, 29.)
FPN generally fills open positions on new projects with its current, regular workforce, if
possible. (Def.’s SMF at ¶ 30.) Plaintiffs Aaron Truesdell, Kenneth Martin, and Johnny Tejada,
are African-American and worked as journeymen sprinkler fitters, meaning they worked under a
foreman who supervised them, or as foremen for FPN. Each of the Plaintiffs was laid off in
2010, and was never transferred or rehired to a new project. Plaintiffs assert that FPN’s actions
were motivated by racial discrimination. (Dkt. No. 21 at ¶ 11.) Throughout the Plaintiffs’
employment, FPN was subject to the terms of the collective-bargaining agreement (CBA) that existed
between the National Fire Sprinkler Association and Sprinkler Fitters and Apprentice Local Union No.
281 Chicago, Illinois. (Def.’s SMF at ¶ 26.)

I. Administrative Change
Former FPN Superintendent, Edward Sullivan, was responsible for hiring Plaintiffs
Martin and Truesdell. All three Plaintiffs had steady employment with FPN while Sullivan was
in charge of hiring, layoffs, rehiring and transfer decisions at FPN. In February 2009, Scott
Acred replaced Sullivan as Superintendent, and was joined in early 2012 by John Waters and
Robert Barcik to form the “field management team.” (Pl.s’ SMF at ¶ 10.) Plaintiffs’ expert, Dr.
William Bridges, evaluated the effect of this administrative change, and found black fitters
worked fewer hours and earned less in the period after Sullivan was replaced by Acred and
eventually the field management team. (Pl.s’ SMF at ¶ 11.)
Dr. Bridges’ data analysis tracks the change in jobs after this administrative shift. His
analysis shows that after the end of a big job (1,000 or more hours), white fitters were picked up
2

for other jobs 90% of the time in 2008 and 2009 and 100% of the time in 2010 and 2011, while
in 2008, black fitters had some prospects for continued employment, but after that (2009-2011),
they had no instances of continued employment. (Pl.s’ SMF at ¶ 25.) FPN disputes this
evidence and argues Dr. Bridges’ statistical analysis is deficient through its rebuttal expert, Dr.
Guryan. In addition to the statistical deficiencies in Dr. Bridges methods, FPN points to the
economic downturn in 2010 and explains that many sprinkler fitters were out of work during the
period analyzed by Dr. Bridges. (Def.’s SMF at ¶ 60.) According to FPN’s John Waters,
another effect of the economic downtown was that FPN was able to selectively employ fitters
based on industry reputation, skills, and productivity.2 (Def.’s SMF at ¶ 60.)
Waters was not a fan of Truesdell and Martin, and always suggested reassignment of
white fitters over them. (Pl.s’ SMF at ¶ 40.) Additionally, Waters testified that when making
hiring and layoff decisions, he ranked fitters by “ask[ing] around who was the best people[.]”
(Waters Dep. at 147:3-24.) FPN maintained field rating charts, although it is unclear whether
anyone on the field management team relied on them. For example, Truesdell had a B+ rating
over the three years FPN tracked the sprinkler fitters. (Pl.s’ Ex. 106, 107, 108.) Daniel Hughes,
a white fitter, had a lower rating than Truesdell and still was working for FPN as of February
2015. (Pl.s’ SMF at ¶ 57.) William Massey, Jr., another white fitter, had a lower rating than
Truesdell, and was employed through February 2015. (Id.) Randy Iverson, who was also white,
had a particularly poor work history with FPN, yet continued to work through 2014. (Pl.s’ SMF
at ¶ 22.)
Around the time that Acred took over as Superintendent, he and others were circulating
emails which Plaintiffs’ experts relied on in evaluating the cultural attitudes toward race in the
2

FPN does not maintain any records tracking sprinkler fitter productivity on specific projects (Exhibit 35, Hebert
dep., at 43:24-44:8). FPN does not conduct written performance evaluations of its sprinkler fitters (Exhibit 58,
Def.’s Resp. to Pl,’s First Request to Admit, at no. 10).

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new administration.

On August 22, 2009, Scott Acred forwarded an e-mail to his field

management team (Robert Barcik and John Waters) that stated: “I don’t think being a minority
makes you a victim of anything except numbers. The only things I can think of that are truly
discriminatory are thinks [sic] like the United Negro College Fund, Jet Magazine, Black
Entertainment Television, and Miss Black America… . I know a lot of black people, and not a
single one of them was born in Africa; so how can they be ‘African-Americans’?” (Pl.s’ Exhibit
121.) The bottom of the email included the statement: “I was asked to send this on if I agree or
delete if I don’t. … If you agree, pass this on, if not delete.” Acred forwarded another email on
November 13, 2009 to Waters and Barcik that included the statement, “Governments, businesses
and colleges have engaged in discrimination against white folks -- with affirmative action,
contract set-asides and quotas -- to advance black applicants over white applicants.” (Pl.s’
Exhibit 42.)

On February 29, 2012, John Hebert, then Vice President of FPN, e-mailed Ken

Votava, a Sales Representative with FPN, “this eeo and mbe crap is a killer.”

(Pl.s’ Ex. 112)

(ostensibly referring to minority job participation requirements).
II. Comparators
Plaintiffs identify thirteen comparators, all foremen, who were not laid off when the
Plaintiffs were terminated in 2009 or 2010. Some of these fitters had the same, or lower, grade
ratings than Martin and Truesdell. Two were described by former Superintendent Procter as
“terrible,” and by Barcik as “inexperienced.” (Pl.s’ SMF at ¶¶ 48, 54.) At least three were
kicked off jobs for poor performance, and one of those three was nearly fired for having
thousands of dollars of tools stolen from his service van parked outside of a bar. (Pl.s’ SMF at
¶¶ 47, 56.)

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III. Plaintiffs
While the Plaintiffs share the above circumstances, they also provide separate and
individual facts for their claims.
A. Kenneth Martin
Kenneth Martin became a member of Local Union No. 281 in the late 1990’s. (Def.’s
SMF at ¶ 20.) He began working for FPN in 2005. He brings claims against FPN based on his
2009 and 2010 layoffs and the subsequent failure to transfer or rehire him to new projects.
Sullivan, who was working as a foreman at that time, recommended Martin to FPN based
on Martin’s hard-working reputation. (Pl.s’ SMF at ¶¶3–4, 6.) In 2005, when Sullivan was the
Superintendent, he rehired Martin. Sullivan promoted Martin to foreman in 2006. (Pl.s’ SMF at
¶¶3–4, 6–8.) After Acred became the superintendent in September 2009, Martin was laid off
from an FPN project. (Pl.s’ SMF at ¶ 79.) In June 2010, he was rehired by FPN when FPN took
over the Boone Project, which Martin was already working on for Universal Fire Protection
(Universal), one of FPN’s competitors. On the Boone Project, there had been leaks in the piping.
Martin explains that these were due to the “terrible” threading on the piping from Universal,
whose financial difficulties had impacted the quality of their supplies being used on the project.
(Pl.s’ SMF at ¶¶ 27, 29.) Nevertheless, FPN blamed Martin for the leaks, (Def.’s SMF at ¶¶ 47–
56), despite Acred admitting that leaks sometimes happen on jobs and do not result in adverse
employment actions against the fitters on those jobs. In fact, Acred did not hold Fitter Dan
Hughes and Erik Massey responsible for floods which occurred on their watch, and Hughes and
Massey continued to work for FPN after Martin was laid off. (Pl.s’ SMF at ¶¶ 37, 44.) Martin
was never reassigned to another job with FPN, but he continued to inquire, specifically making
phone calls to Acred about whether there was available work. (Pl.s’ SMF at ¶ 33.)

5

Martin filed a Charge of Discrimination with the EEOC on July 11, 2011. He received a
notice of dismissal and right to sue dated July 20, 2011. (Def.’s SMF at ¶ 12.) He received a
notice of the EEOC’s intent to reconsider its dismissal dated September 19, 2011, stating that the
EEOC was “rescinding the Dismissal and Notice of Rights… [and] will continue the
investigation[,]” (Def.’s SMF at ¶ 13, Pl.s’ SMF at ¶¶ 76, 77.) The second right-to-sue was letter
mailed on February 6, 2013, and told Martin that his Title VII claims “must be filed in a federal
or state court WITHIN 90 DAYS of your receipt of this notice, or your right to sue based on this
charge will be lost.” (Id.) (emphasis in original).3 (Def.’s SMF at ¶¶ 12, 16–17.)
B. Aaron Truesdell
Aaron Truesdell became a member of Local Union No. 281 in 1989 and continued his
membership through his retirement on December 31, 2014. (Def.’s SMF at ¶¶ 1, 20.) Truesdell
was first hired by FPN on May 15, 2006. (Def.’s SMF at ¶ 31.) He brings claims against PFN
for his 2009 and 2010 layoffs and their subsequent failure to transfer or rehire him after the 2010
layoffs.
Former FPN Superintendent, Edward Sullivan, hired Truesdell in 2005 based on
Truesdell’s good reputation in the field. (Pl.s’ SMF at ¶¶2, 5–6.) While Sullivan made hiring,
transfer, layoff, and rehiring decisions, Truesdell found steady work with FPN; in many of those
jobs, Sullivan promoted Truesdell to foreman. (Pl.s’ SMF at ¶¶ 2–6.) In July 2009, Truesdell
took over the Chase Bank job as a foreman, replacing non-African-American, Randall (“Randy”)
Iverson. (Def.’s SMF at ¶¶ 34, 35.) When the field management team took over, the team made
the August 14, 2009, decision to layoff Truesdell from the Chase Bank job. (Def.’s SMF at ¶ 34;

3

Receipt starts the running period of the limitations period. Prince v. Stewart, 580 F.3d 571, 574 (7th Cir. 2009).
When the date of receipt is unknown, as it is here, the receipt is presumed to be five days from the mailing date. See
Lloyd v. Sullivan, 882 F.2d 218, 218 (7th Cir. 1989). Under this five-day presumption, Martin filed his original pro
se complaint within 88 days of receiving this second right to sue, on May 10, 2013.

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Pl.s’ SMF at ¶ 54.) Iverson had an especially poor track record. Metcalfe testified that Iverson
was constantly late, (Metcalfe Dep. at 307:14–308:2), and Acred testified about some of
Iverson’s more dramatic mistakes, including pulling the fire alarm in a hospital while filling the
sprinkler system. (Acred Dep. at 168:4-12.) Nevertheless, although laid off from the Chase
Bank job, Iverson continued to work steadily into 2014 for FPN on other jobs. (Pl.s’ SMF ¶ 22.)
After the Chase Bank job, Truesdell found work with FPN competitor, Universal. (Def.’s
SMF at ¶ 41.) While working on that job, Truesdell turned down an offer from FPN Project
Manager Barcik to work on an FPN project, but asked if he could circle back with Barcik when
the project was over; he did so, and Barcik hired Truesdell to work for FPN on the Lee Pasture
Job. (Def.’s SMF at ¶ 41; Barcik Dep. At 133:14–18; 134:1–3; 134:12–21.) Truesdell’s final
job for FPN was as the foreman on the Wal-Mart project. He was laid off on September 29,
2010. (Def.’s SMF at ¶ 50.) Truesdell was the last sprinkler fitter on the job and was laid off,
according to FPN, because the project was complete. (Def.’s SMF at ¶ 50.) Following the
completion of the Wal-Mart project, Acred met with a group of individuals to create the “After
Action Report,” documenting the failures on the Wal-Mart project. (Def.’s SMF at ¶ 52.) Acred
noted in this report that the “[w]rong foreman [was] running [the] project.” (Id.) At the same
time, Acred pointed out problems with the Wal-Mart project that were beyond Truesdell’s
control, for example, problems due to sales representative Scott Katcher’s poor management of
the project. (Herbert Dep. at 61:21-63:18) (“it was just not a very well-managed project from
day one.”); (Pl.s’ SMF ¶¶ 40-41.) Truesdell was never rehired by FPN. Plaintiffs cite nine
projects after the 2010 layoff that FPN had work available for fitters. Plaintiffs do not dispute
that Truesdell did not reach out to FPN for employment after his 2010 layoff. (Pl.s’ SMF at ¶
44.) FPN, however, never posted fitter job openings or informed Local 281 of upcoming jobs.

7

(Pl.s’ SMF at ¶ 13.) Nevertheless, FPN continued to tap into its work pool for fitters that had
same or lower ratings than Truesdell. (Pl.s’ SMF at ¶ 13.) Neither party presents evidence as to
whether or not these fitters specifically contacted FPN for employment or whether FPN reached
out to them.
On July 6, 2011, Truesdell filed an Intake Questionnaire and a charge with the EEOC.
(Def.’s SMF at ¶ 3.)

In his charge, he alleged the September 2010 layoff was unlawful

discrimination based on his race but he did not explicitly mention a failure to rehire. (Def.’s
SMF at ¶¶ 4, 5.) The EEOC issued a notice of right to sue letter on August 12, 2011 which
Truesdell received. (Def.’s SMF at ¶ 8.) On September 19, 2011, Truesdell received a letter
from the EEOC rescinding the dismissal of his charge and stating the EEOC would continue its
investigation. Truesdell did not know why the EEOC rescinded the right to sue and heard
nothing further from the EEOC until his counsel, Judson Miner, contacted the EEOC on
February 4, 2013, and requested the EEOC issue a notice of right-to-sue on behalf of Truesdell
and co-plaintiff Martin. (Truesdell Dep. 176:12-177:19, Def.’s SMF at ¶ 14.) The February 4,
2013 notice states: “Your lawsuit under Title VII, the ADA or GINA must be filed in a federal or
state court WITHIN 90 DAYS of your receipt of this notice, or your right to sue based on this
charge will be lost.” (Id.) (emphasis in original).4

4

Taking into account the five-day presumption, Truesdell filed his initial complaint on May 10, 2013, within 88
days of receiving this right to sue.

8

C. Johnny Tejada
Plaintiff Johnny Tejada is of Panamanian ancestry and also identifies as AfricanAmerican. (Def.’s SMF at ¶ 1; Tejada Dep. Tr., at 10:9-11:2; 11:22-24.). Tejada brings claims
against FPN for his 2010 layoff, FPN’s subsequent failure to transfer or rehire him after that
layoff, and a claim for wage discrimination. On December 13, 2001, Tejada became a member
of the Sprinkler Fitters and Apprentice Local Union No. 281 (“Union”) and his membership was
active through January 31, 2013. (Def.’s SMF at ¶ 25.)
Tejada’s first job for FPN was the Powell School project.

The George Sollitt

Construction Company (Sollitt) contacted John Hebert, senior vice president of FPN, to inquire
as to whether FPN could assist in completing a project on the Adam Clayton Powell, Jr.
Elementary School, located at 7511 South Shore Drive, Chicago, Illinois 60649 (Powell project),
as Universal —Sollitt’s then-current fire protection subcontractor—was unable to complete the
job due to financial hardships. (Def.’s SMF at ¶ 32.) Hebert agreed that FPN would take over
the job. (Id. at ¶ 33.)
FPN specifically ensured that the formal agreement with Sollitt would not require any
minority job participation. (See Def.’s SMF at ¶ 33) (The subcontract stated: “[t]his agreement
stipulates that F.E. Moran Fire Protection will not supply any of the aforementioned minority
participation on this project and therefore will not be held liable to potential penalties associated
with shortfalls.”). The rider, “Rider II,” in Sollitt’s form subcontracts normally requires minority
job participation. (See Rahn Dep. at 72:23-73:4) (“Q: “that was your preference to have Rider II
in subcontracts, correct? A: As a general rule, yes. Q: Okay. But F.E. Moran did not want
Rider II in the subcontract. A: That’s apparent yes.”).

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For purposes of continuity, and based on communications between FPN and Sollitt, FPN
decided to hire Tejada to work on the Powell project on June 28, 2010. (Def.’s SMF at ¶ 40.)
The parties dispute whether or not Tejada was initially hired as the foreman. Tejada believed
that he was the foreman because he had been a foreman on other projects for Universal,5 and on
the Powell Project in particular. (Tejada Dep. at 118:16-18; 120:2-3; 120:10-12; 123:1-14.) He
also believed that he was the foreman on the project because, when FPN took over the job, he
was the only fitter, and under the collective bargaining agreement when there is only one fitter,
that fitter is considered the foreman. (See Def.’s SMF at ¶ 55, Ex. A, Dep. Ex. 10); (see also
Tejada Dep. at 123:1-14.) While Tejada did not list his job as foreman on his EEOC intake
questionnaire and instead listed his job as journeyman, (Tejada Dep., Ex. 15 at FPN 543-544), he
nevertheless stated that he believed he was discriminated against because he never received a
foreman’s pay. (Tejada Dep., Ex. 15, FPN 543-544.)
One week6 after FPN took over the Powell Project, FPN assigned Eric Woolwine as the
foreman of the project. Woolwine had a stellar reputation according to the testimony of FPN’s
employees. (See, e.g. Def.’s SMF at ¶ 44) (He was known in the industry as “Eric ‘Awesome’
for a reason.”) Later, FPN determined that, based on the Powell project, Woolwine was more
productive than Tejada. (Barcik Dep. at 119:1-3) (“Eric was cutting 23-plus [sprinkler] heads in
a day and Mr. Tejada was probably at 15”; but also testifying that 15 is “a good number[.]”).
In the midst of the Powell project, on September 17, 2010, FPN laid off Tejada. (Def.’s
SMF at ¶ 52.) Woolwine remained on the Powell School job following Tejada’s layoff, and at
the end of the project Woolwine was transferred to another project. (¶ 54.) Although he was not
5

However, during one of these projects, Tejada testified that he had waived the foreman’s pay because he
understood that Universal was having financial difficulties. (Id. at 138:6-18; 139:3-6.)
6
On the questionnaire, Tejada lists the dates of wage discrimination as June 14 to June 18, 2010; during his
testimony, he explained that the wage discrimination occurred during the first week he worked on the Powell job,
which was actually June 28, 2010 to July 2, 2010. (Def.’s SMF at ¶ 47.)

10

transferred or rehired, Tejada believed that there was work available for him at the time of his
layoff. (Tejada Dep. 17:23-18:2.)
The parties dispute the extent of Tejada’s efforts to seek employment after this layoff.
(See Def.’s SMF at ¶¶ 62–63; Pl. Dep. Tr., at 217:14-17.) According to FPN, Tejada made no
efforts to put his name on the Union’s “out-of-work” list, and did nothing more than leave two
general voice messages for an FPN superintendent. (Def.’s SMF ¶ 62.) FPN also points out that
Tejada waited nearly a year after his layoff before contacting his supervisor, Acred. But Tejada
explained in his testimony that he waited until summer before contacting Acred because “our
work is really seasonal driven. So when it starts getting warm again, works really pick up [sic].
And that’s when I was really pounding the pavement as far as trying to find work again, [] and at
that point I was desperate, and I started calling F.E. Moran again. And it was more than just that
one time. I kept calling them because I never got any answer back whatsoever.” (Tejada Dep.
45:15-46:3.) Acred testified that he could not recall whether or not Tejada called him to express
an interest in rehire, and that he did not keep a log of his phone calls or messages. (Acred Dep.
216:10-217:5.) There is clearly a dispute as to how far Tejada went to seek further employment
from FPN.
On June 30, 2011, Tejada filed an intake questionnaire and a Charge of Discrimination
with the EEOC, bringing allegations of race and sex discrimination. (Def.’s SMF at ¶¶ 3, 6.) In
the intake questionnaire, Tejada lists Eric Woolwine (mistakenly called “Wrightwood”) as an
individual that was treated better than him and states that while Tejada was “let go,” Woolwine
ultimately “went on to work other projects” with FPN. (Pl.s’ SMF at ¶45.) Tejada ultimately
received the operative right-to-sue notice on August 12, 2013, and filed this complaint on

11

November 12, 2013.7 Tejada believed that he was discriminated against because of the events
surrounding the Powell Project, and admits that no one ever made any specific race-based
comments to him during his employment with FPN. (Def.’s SMF at ¶ 61.)
LEGAL STANDARD
“The court shall grant summary judgment 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). Whether a fact is material depends on the underlying substantive law that
governs the dispute. Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012) (citation omitted). “A
factual dispute is ‘genuine’ only if a reasonable jury could find for either party.” Nichols v.
Mich. City Plant Planning Dep’t, 755 F.3d 594, 599 (7th Cir. 2014) (internal quotation marks
and citation omitted).

Because the plaintiff bears the ultimate burden of persuasion, the

defendant’s summary judgment burden “may be discharged by ‘showing’—that is, pointing out
to the district court—that there is an absence of evidence to support the nonmoving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also Andrews v. CBOCS W., Inc., 743
F.3d 230, 234 (7th Cir. 2014). “Upon such a showing, the nonmovant must then ‘make a
showing sufficient to establish the existence of an element essential to that party's case.’”
Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (quoting Celotex, 477 U.S. at 322).
The nonmovant must “go beyond the pleadings…to demonstrate that there is evidence upon
which a jury could properly proceed to find a verdict in her favor.” Id. at 1168-69 (internal
quotation marks and citation omitted). Summary judgment is appropriate where “no reasonable
jury could rule in favor of the nonmoving party.” See Bagwe v. Sedgwick Claims Mgmt. Servs.,
Inc., 811 F.3d 866, 879 (7th Cir. 2016) (citation omitted).

7

Taking into account the five-day presumption, the August 12, 2013 right-to-sue letter was received on August 17,
2013 and the November 12, 2013 complaint, was filed 87 days later.

12

DISCUSSION
Plaintiffs’ claims for discrimination arise under Title VII and Section 1981.

“[I]n

enacting Title VII of the Civil Rights Act of 1964, Congress intended to prohibit all practices in
whatever form which create inequality in employment opportunity due to discrimination on the
basis of race, religion, sex, or national origin, and ordained that its policy of outlawing such
discrimination should have the “highest priority.” Franks v. Bowman Transp. Co., 424 U.S. 747,
763 (1976) (internal citation omitted) (collecting cases). Specifically, Title VII makes it illegal
for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color, religion, sex, or national
origin.” 42 U.S.C.A. § 2000e-2. When plaintiffs allege that they have been treated differently
because of their race, as plaintiffs have here, they must prove the “employer had a discriminatory
motive for taking a job-related action.” Ernst v. City of Chicago, 837 F.3d 788, 794 (7th Cir.
2016)
In pertinent part, Section 1981 provides that “[a]ll persons within the jurisdiction of the
United States shall have the same right . . . to make and enforce contracts, [and] to sue . . . as is
enjoyed by white citizens[.]” 42 U.S.C. § 1981(a). Section 1981 authorizes claims for retaliation
where “one person takes action against another for asserting the right to substantive contractual
equality[.]” Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012) (citing CBOCS West, Inc. v.
Humphries, 553 U.S. 442, 445 (2008)). “[U]nlawful retaliation occurs when an employer takes
an adverse employment action against an employee for opposing impermissible discrimination.”
Bray, 681 F.3d at 896 (citation and internal quotation marks omitted). There is a “necessary
overlap” of the contract rights protected by § 1981 and the employment rights guarded by Title

13

VII of the 1964 Civil Rights Act. See 42 U.S.C. § 2000e–3(a); CBOCS, 553 U.S. at 455
(remedies available under Title VII and Section 1981 related). Courts therefore “apply the same
elements to retaliation claims under Title VII and § 1981.” Stephens v. Erickson, 569 F.3d 779,
786 (7th Cir. 2009).
FPN asserts that Plaintiffs’ Title VII and 1981 claims fail for reasons of timeliness,
Plaintiffs’ failure to exhaust administrative remedies, and additionally fail as a matter of law. In
short, FPN waived the timeliness issues, Plaintiffs sufficiently exhausted administrative
remedies, and beyond those procedural issues, the claims raise issues of fact that preclude
summary judgment.
I.

Timeliness
FPN asserts that Plaintiffs’ claims are time-barred. Specifically, FPN argues the (1) the

Title VII claims are time-barred because Tejada failed to file suit within 90 days, and (2) the
1981 claims are time-barred by the two-year statutes of limitations period. The Court need not
address the merits of this argument because FPN waived these arguments.
The Federal Rules of Civil Procedure require that all affirmative defenses be specifically
pled. Rule 8(c) states that “in responding to a pleading, a party must affirmatively state any
avoidance or affirmative defense, including ... duress ... [and] lack of consideration.” However,
failure to plead affirmative defenses in an answer only results in waiver of the defense if the
plaintiff would be harmed as a result of the delay. See Curtis v. Timberlake, 436 F.3d 709, 711
(7th Cir. 2005); see also Glob. Tech. & Trading, Inc. v. Tech Mahindra Ltd., 789 F.3d 730, 731
(7th Cir. 2015) (“Several of our decisions hold that a district court may (though it need not)
permit an untimely affirmative defense, provided the plaintiff does not suffer prejudice from the
delay.”). Generally, such harm can be assumed when the affirmative defense is raised only after

14

the close of discovery, such that the plaintiff is unable to adequately respond to its factual basis.
See, e.g., Laborers’ Pension Fund v. Dynamic Wrecking & Excavation, Inc., No. 07 C 2156,
2008 WL 4874110, at *6 (N.D.Ill. June 13, 2008) (citing to BMO Capital Markets Corp. v.
McKinley Medical LLC, No. 06 C 6071, 2007 WL 2757172, at *10 (N.D.Ill. Sept. 18, 2007))
(plaintiff harmed when defendant raised affirmative defense of moral duress only in response to
plaintiff's motion to summary judgment).
For both Title VII and Section 1981, the applicable statutes of limitation are not
jurisdictional. See U.S. v. Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015) (a party “must clear a
high bar to establish that a statute of limitations is jurisdictional. In recent years, we have
repeatedly held that procedural rules, including time bars, cabin a court’s power only if Congress
has ‘clearly state[d]’ as much.”) (internal quotations omitted.); see also Zipes v. Trans World
Airlines, Inc., 455 U.S. 385 (1982) (the filing provisions in Title VII cases are “not a
jurisdictional prerequisite to suit in a federal court, but a requirement that, like a statute of
limitations, is subject to waiver, estoppel, and equitable tolling.”); see, e.g., Williams v. U.P.S.,
Inc., No. 87 C 6360, 1991 WL 18207 (N.D.Ill. Jan. 30, 1991) (finding waiver appropriate where
Defendant asserted statute of limitations defense “long after the close of discovery”).
FPN does not contest that it raised these defenses for the first time on Summary
Judgment, but retorts that there was no prejudice in the delay. Nothing has occurred in discovery
giving rise to the defense that was not present when FPN filed their answer and motion to
dismiss. FPN’s argument that there is no prejudice to Plaintiffs, however, lacks merit. When a
party knows of an affirmative defense prior to or during discovery, it can strategize accordingly.
For example, Plaintiffs may have made more significant efforts to seek discovery on tolling

15

where appropriate; here, Plaintiffs would be deprived that benefit if the Court allows FPN to
proceed with a statute of limitations defense.
II.

Failure to Exhaust Remedies
In order to maintain a claim under Title VII, a party must exhaust its administrative

remedies.8 See Rush v. McDonald’s Corp., 966 F.2d 1104, 1110 (7th Cir. 1992). The scope of
the subsequent judicial proceedings is limited by the nature of the charges filed with the EEOC.
Id. This ensures that the employer receives notice of the conduct about which the employee is
aggrieved and guarantees that the EEOC and the employer have an opportunity to settle the
dispute. Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). The
Court begins the analysis with the understanding that EEOC charges should be construed
liberally because they are completed by laypersons. Cheek, 31 F.3d at 500 (citing Taylor v.
Western & Southern Life Ins. Co., 966 F.2d 1188, 1195 (7th Cir. 1992). A Title VII plaintiff
need only set forth claims that are “like or reasonably related to the allegations of the charge and
growing out of such allegations.” Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167
(7th Cir. 1976) (en banc) (quoting Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir.
1971)), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976) (internal quotations
omitted).

8

The exhaustion analysis also contemplates that the employee filed procedures within a timely matter under EEOC
regulations. Although FPN waived its timeliness defenses, the Court notes that the Plaintiffs all filed their lawsuits
within 90 days of the operative notices of the right to sue. The Court is not persuaded by FPN’s arguments that
Martin and Truesdell’s second right-to-sue letters are not effective because the EEOC never validly revoked the
original right-to-sue letters. Both Martin and Truesdell received notice of the EEOC’s intent to reconsider its
dismissals within 90 days of the original dismissal, see 29 C.F.R. § 1601.19(b). FPN cites to no precedential case
law that these letters were insufficient for purposes of revoking the original dismissal. FPN’s argument that there
was no actual evidence of an ongoing investigation is even less persuasive as they do not cite to any support for the
proposition that Plaintiffs would be privy to the details of the investigations. After receiving the intent to
reconsiders, Plaintiffs requested and were sent the subsequent right-to-sue letter which explicitly stated that
Plaintiffs Title VII claims “must be filed in a federal or state court WITHIN 90 DAYS of your receipt of this notice,
or your right to sue based on this charge will be lost.” (emphasis in original). Based on all of these facts, Martin
and Truesdell’s complaints were timely under 29 C.F.R. § 1601.19(b). Tejada’s August 12, 2013 right-to-sue letter
was received on August 17, 2013 and the November 12, 2013 complaint, was filed 87 days later.

16

Two threshold issues apply with respect to all of the Plaintiffs EEOC charges. First, FPN
asserts that the Plaintiffs did not include a pattern or practice discrimination claim in their EEOC
charges. None of the Plaintiffs needed to exhaust for pattern or practice, however, because they
are not pursuing that claim.

Instead, Plaintiffs rely on FPN’s employment “practice of

transferring white sprinkler fitters . . . instead of laying them off,” as evidence in support of the
individual disparate treatment claims. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S.
792, 805-06 (1973) (appropriate evidence demonstrating pretext for failure to rehire included the
employer’s general policy and practice with respect to minority employment.)

FPN

acknowledges that pattern and practice evidence can be collateral to evidence of specific
discrimination against the Plaintiff. (Dkt. 198 at 14.)
Second, Plaintiffs all based their EEOC charges on their layoffs and do not explicitly
mention the failure to transfer or rehire. But the distinction between “layoff” and “failure to
transfer or rehire” claims must be viewed in the context of the sprinkler-fitter industry. A layoff
decision and a decision not to transfer / rehire are not necessarily separate and distinct acts.
When a project ends, sprinkler fitters are typically laid off and then subsequently transferred or
rehired to a new project. (Def.’s SMF at ¶ 28.) FPN’s claims that Plaintiffs’ EEOC Charges that
only reference layoffs cannot provide the basis to their transfer / rehire claims. But this looks at
the layoffs in a vacuum without the context of the industry – in fact, it would be difficult to
determine that a layoff, in and of itself, was discriminatory, as it is the outcome at the end of
nearly every project. Instead, the failure to transfer / rehire after the layoff is the operative
employment decision for analyzing possible discrimination with respect to most of Plaintiffs’
claims. It is reasonable to presume that the EEOC, in reviewing cases in this industry, would

17

investigate subsequent failures to rehire / transfer in reviewing Charges pertaining to layoffs.9
Therefore, the “complaint can reasonably be expected to grow out of an EEOC investigation of
the allegations in the charge.” Cheek, 31 F.3d at 500.10
FPN relies on Sauzek v. Exxon Coal USA, Inc. for the proposition that Plaintiffs cannot
expect their failure to transfer/rehire claims to reasonably grow out of their EEOC charges that
cite only their layoffs, but the case is distinguishable. 202 F.3d 913 (7th Cir. 2000). Exxon, the
employer, had closed a coal mine and laid off the miners, and when it re-opened the mine, it
recalled many of the workers who had been laid off. Indeed, the lower court in Sauzek granted
summary judgment for Exxon because plaintiffs’ only evidence supporting their failure to
transfer/recall claims was a “three month gap between their EEOC charges and Exxon’s decision
not to rehire them,” and this was insufficient to conclude the two events were related. Id. at 919.
There was no similar evidence in Sauzek that the nature of layoffs and recalls are tied together in
the mining industry. And there was only one massive lay off at issue. Here, FPN works on
several projects and layoffs occur at the end of each project. The layoff and the recall are not
distinct as they are in Sauzek.
Finally, FPN asserts Martin and Truesdell do not allege in their EEOC charges that FPN
discriminated against them in any manner prior to the 2010 layoff. Neither filed a charge
regarding their 2009 layoffs.

But their evidence surrounding the 2010 Charges provide a

sufficient basis for their failure to rehire/transfer provide and raise an issue of fact as to whether

9

With respect to Tejada in particular, not only does he reference his layoff, he additionally lists Eric
Woolwine (mistakenly listed as Eric “Wrightwood”) as an individual who was treated better than him and
states that while Tejada was “let go,” Woolwine ultimately “went on to work other projects” with FPN.
(Pl.s’ Exhibit 7.)

10

FPN asserts that the “limited, short-term employment is substantially similar,” (Dkt. 236 at 7), to the
facts in Sauzek, but Sauzek does not clearly state, and FPN does not provide, how the facts in the
employment at issue there were limited and short-termed.

18

FPN violated Title VII and 1983. Therefore, the Court does not need to consider the 2009
layoffs.
III.

Title VII and § 1981 Claims
Because the same methods of proof and standards apply to discrimination claims brought

pursuant to Title VII and § 1981, the following discussion applies with equal force to Counts I
through III. See Sublett v. John Wiley & Sons, 463 F.3d 731, 736 (7th Cir. 2006) (quoting
Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 940 (7th Cir. 1996)) (“[A]lthough section 1981
and Title VII differ in the types of discrimination they proscribe, the methods of proof and
elements of the case are essentially identical.”) (internal quotations omitted).
Until very recently, a district court would separate evidence into two buckets. First, a
district court would determine whether the plaintiff had satisfied the so called “direct method” of
proof; that is, it would look to see whether the plaintiff had “present[ed] sufficient evidence,
either direct or circumstantial, that the employer’s discriminatory animus motivated an adverse
employment action.” Harper v. Fulton Cnty., 748 F.3d 761, 765 (7th Cir. 2014) (quoting
Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012)) (internal quotation marks omitted).
Second, the district court would determine whether plaintiff had satisfied the “indirect method”
of proof, such as that described in McDonnell Douglas Corp., 411 U.S. at 802. Under the
indirect method of proof, a plaintiff could shift the burden of proof to the defendant after making
a prima facie case, showing: that “(1) she is a member of a protected class; (2) she met her
employer's legitimate job expectations; (3) she suffered an adverse employment action; and (4)
similarly situated employees outside of the protected class received more favorable treatment.”
Kuttner v. Zaruba, 819 F.3d 970, 976 (7th Cir. 2016) (internal quotations and citations omitted).
If the plaintiff makes her prima facie case, the burden shifts to the defendant to give a non-

19

discriminatory reason for treating the plaintiff the way it did, and if the defendant meets its
burden, the burden shifts back to the plaintiff to show that the defendant's explanation was just a
pretext. McDonnell Douglas, 411 U.S. at 802, 804.
In Ortiz v. Werner Enterprises, the Seventh Circuit eliminated the “direct” versus
“indirect” evidence distinction from analysis of employment discrimination claims. 834 F.3d
760, 765 (7th Cir. 2016). The Circuit explicitly overruled numerous decisions “to the extent that
these opinions insist on the use of the direct-and-indirect framework.”11 Id. at 765-66. The
decision does not disturb the burden-shifting framework. David v. Bd. of Trustees of Cmty. Coll.
Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017).
Thus, the Court first assesses whether the Plaintiffs established a prima facie case of
discrimination under the McDonnell Douglas framework, and then “assess cumulatively all the
evidence presented by [Plaintiff] to determine whether it permits a reasonable factfinder to
determine that [the employment decision] was attributable to his race. Id. Under McDonnell
Douglas, each Plaintiff has the initial burden to show that (1) he is a member of a protected
class; (2) he performed reasonably on the job in accordance with his employer’s legitimate
expectations; (3) despite his reasonable performance he was subjected to an adverse employment
action; and (4) similarly situated employees outside of his protected class were treated more
favorably. See David, 846 F.3d at 225. If Plaintiffs satisfy this burden, then “the employer
articulates a legitimate, nondiscriminatory reason for the adverse employment action, at which
point the burden shifts back to the plaintiff to submit evidence that the employer’s explanation is
pretextual.” Id. (quoting Andrews v. CBOCS West, Inc., 743 F.3d 230, 234 (7th CIr. 2014).
Pretext means “‘a dishonest explanation, a lie rather than an oddity or an error.’” Sweatt v.
11

“The use of disparate methods and the search for elusive mosaics has complicated and sidetracked employmentdiscrimination litigation for many years. During the last decade, every member of this court has disapproved both
the multiple methods and the search for mosaics.” Id. at 764.

20

Union Pac. R. Co., 796 F.3d 701, 709 (7th Cir. 2015) (quoting Peele v. Country Mut. Ins. Co.,
288 F.3d 319, 326 (7th Cir. 2002)).
FPN only asks the Court to analyze the evidence under the McDonnell Douglas test and
argues each of the Plaintiffs fails to demonstrate a prima facie case. But even under McDonnell
Douglas, each of the Plaintiffs raises an issue of material fact as to whether FPN laid off or failed
to transfer / rehire them based on racial discrimination.
A. Evidence Pertaining to All Plaintiffs
Plaintiffs introduce emails demonstrating racial animus, which were circulated among
Acred and his field management team. (See, e.g., Pl.s’ Exhibit 121) (Acred emails, “[t]he only
things I can think of that are truly discriminatory are thinks [sic] like the United Negro College
Fund[.]”) The emails do not reference the individual Plaintiffs. However, social psychology
expert, Dr. Destiny Peery, examined the emails and found that they contained explicit racial
stereotypes; aversive racism; a work environment ripe for the presence of implicit racial bias;
and employment processes particularly prone to the influence of implicit racial bias due to their
subjectivity and lack of accountability and transparency. (Pl.s’ SMF at ¶41.) Among the most
revealing is an email sent on February 29, 2012, by John Hebert, then Vice President of FPN, emailed Ken Votava, a Sales Representative with FPN, “this eeo and mbe crap is a killer.” (Pl.s’
Exhibit 112) (referring to minority job participation requirements). Herbert is the same Vice
President who negotiated that contract with Universal and ensured that there would be no
minority hiring requirements, even though it was typically Universal’s practice to include a rider
with such requirements.

These emails raise an issue as to whether FPN’s management

participated in a racist culture.12

12

Metcalfe also testified that he was “sure” he heard the word “nigger” at FPN. (Metcalfe Dep. at 161-165.)

21

1.

Martin

Martin bases his Title VII and Section 1981 claims on his layoffs in 2009 and 2010, as
well as FPN’s failure to transfer or rehire him after the 2010 layoff. Because Martin worked
until the job was completed, the Court finds that FPN had a legitimate business reason for those
layoffs, the consistent practice of laying off the last fitter on the job.

Instead, Martin’s

discrimination claim survives because of FPN’s failure to transfer / rehire Martin after the 2010
layoff. FPN asserts that the failure to transfer / rehire claim fails because Martin fails to establish
elements two, three, and four of his prima facie case: (2) he is qualified for the position; (3) he
applied for and was rejected for the position sought; and (4) the position was granted to a person
outside the protected class who is similarly or less qualified than him.
Martin meets element two, since he demonstrates his qualifications both through the
testimony of former superintendent Sullivan, his many years in the industry, as well as his FPN
grade ratings of Martin. Martin also meets the third element. After he was laid off, Martin
continued to inquire about possible work with FPN, specifically making phone calls to Acred
about availability. (Pl.s’ SMF at ¶ 33.) Finally, similarly situated white sprinkler fitters with the
same or lower grade ratings continued to obtain employment after Martin’s 2010 layof An
analysis of similarly-situated individuals considers “all relevant factors,” which depend “on the
context of the case,” and “should not be applied mechanically or inflexibly.” Peirick v. Indiana
Univ.-Purdue Univ. Indianapolis Athletics Dep't, 510 F.3d 681, 688 (7th Cir. 2007) (internal
citations omitted) (noting, in disciplinary cases, similarly situated employees will likely "shar[e]
the same supervisor, performance standards, and 'engaged in similar conduct without such
differentiating or mitigating circumstances as would distinguish their conduct or the employer's

22

treatment of them,'" but that factors such as employment classification and full-time or part time
status may not necessarily be relevant to the analysis).
Because Martin meets his prima facie case, the burden shifts to FPN to demonstrate a
legitimate, non-discriminatory reason for the failure to transfer / rehire. FPN asserts that after
the Boone project, Martin was no longer qualified for sprinkler fitter work. Because there were
leaks on the Boone Clinton job, FPN had to return to the job to fix the leaks. (Def.’s SMF at ¶¶
47–56.) There are a few issues of material fact surrounding this element. As Martin points out,
FPN took over for Universal on this project. Universal was in a bad financial situation, putting
their sprinkler fitters in a bind when it came to materials – and Martin noticed issues with the
pipe threading resulting from this. The leaks, therefore, were not necessarily within his control.
Moreover, similarly-situated sprinkler fitters worked on projects with not only leaks but
“floods,” and still managed to work through 2015. Also, while FPN points to the economic
downturn as a cause of drying up sprinkler fitter business, according to Plaintiffs, the downturn
did not prevent FPN from consistently rehiring and transferring white sprinkler fitters through
2015. Even if the Court were to accept FPN’s proffered legitimate reason for not rehiring
Martin, there is enough on this record, between the emails and Plaintiffs’ expert’s data, and the
continued employer of white fitters who were responsible for floods while Martin was
responsible for leaks, to create an issue of fact as to whether the proffered reason is pretextual.
Summary Judgment is denied on Martin’s Title VII and Section 1981 claims because there is a
dispute of fact as to whether FPN’s decision to not rehire or transfer him after his 2010 layoff
was discriminatory.

23

2.

Truesdell

Like Martin, Truesdell bases his Title VII and Section 1981 claims on both FPN’s 2009
and 2010 layoffs, as well as the failure to transfer or rehire him after the 2010 layoff. Because
Truesdell worked until the jobs were completed in 2009 and 2010, the Court finds that FPN had
a legitimate business reason for those layoffs, the consistent practice of laying off the last fitter
on the job. Instead, Truesdell’s discrimination claim survives because of the subsequent failure
to transfer / rehire Truesdell.
Truesdell Failure to rehire / transfer
This is especially true in light of Truesdell’s evidence of comparators, the next element
that FPN asserts Truesdell failed to meet in his prima facie case. Although he did not specifically
identify them in his deposition, there is evidence on the record that similarly-situated foremen
who were rated the same or lower than Truesdell were treated more favorably than him.
Truesdell’s similar or higher ratings than comparators FPN decided to transfer or rehire is
enough to raise an issue of fact.
FPN asserts that Truesdell’s failure to rehire / transfer claim fails on the second, third,
and fourth elements: (2) Truesdell failed to establish that he was qualified for the position; (3)
that he applied for and was rejected for the position sought; and (4) that the position was granted
to a person outside the protected class who was similarly situated. The Court will only analyze
these three elements of Truesdell’s prima facie case.
For the second element, Truesdell set forth evidence that he was qualified for available
work after his 2010 layoff. Truesdell had a good reputation in the industry according to former
superintendent Sullivan. The only evidence FPN relies on to assert otherwise is not strong
enough to grant summary judgment. FPN asserts that Truesdell did not meet FPN’s performance

24

expectations on the Wal-Mart project. See Argyopoulos v. City of Alton, 539 F.3d 724, 736 (7th
Cir. 2008) (finding poor performance at as legitimate non-discriminatory reason.). But in the
Argyopoulos case, cited to by FPN, the employer compared negative reports from different years
to show poor job performance, and did not base its employment decision on the alleged failure of
a single project. Id. at 735. Whether Truesdell performed in accordance with expectations, and
who was to blame for the failings of the Wal-Mart project, are disputed facts. Sullivan, who
Plaintiffs assert was in charge before the the Acred administration took over, recognized
Truesdell as a good worker. (Pl.s’ SMF at ¶¶ 5–6.) This is consistent with Truesdell’s grade
ratings in 2008, 2009 and 2010. Next, Truesdell meets the third element of his prima facie case
given the realities of the sprinkler fitter industry. It is undisputed that Truesdell did not apply for
any work with FPN after the 2010 layoff, but sprinkler fitters do not submit formal applications
to FPN. (Def.’s SMF ¶¶ 28–30.) The process is more informal, as FPN does not have a specific
hiring policy but instead will reach out to sprinkler fitters, or sprinkler fitters reach out to FPN,
for available work.

(Id.) It may hurt Truesdell at trial that he did not reach out to FPN at all

after his 2010 layoff about the possibility of rehire.

For his prima facie case, however, it is

enough that Truesdell remained a member of Local 281, did not signal in any way that he was
unavailable for work and that it was FPN’s practice to reach out to sprinkler fitters about
available work, and did not do so here, possibly with discriminatory motives. Finally, Truesdell
meets the fourth element because FPN sets forth evidence that white employees with similar or
lower ratings, and some who were responsible for project failings that were worse than WalMart, continued to work on FPN jobs through 2015.
Shifting the burden to FPN, whether FPN had a legitimate, non-discriminatory reason for
the failure to transfer / rehire is a question for the trier of fact based on the disputes in this record.

25

FPN’s main evidence of a legitimate, nondiscriminatory reason is Truesdell’s performance on
the Wal-Mart project.

That evidence is not dispositive of any of the parties’ disputes.

Specifically, while Acred’s actions in creating the “After Action Review” after Wal-Mart could
be used by FPN as evidence of Truesdell’s performance, the report could also indicate animosity
toward Truesdell in light of the evidence that blame was hoisted on Truesdell for issues that were
not in his control. (Pl.s’ SMF ¶¶ 40-41.) For the same reasons discussed with respect to Martin,
even if the Court were to accept FPN’s proffered legitimate reason for not rehiring Truesdell,
there is enough on this record to create an issue of fact as to whether the proffered reason is
pretextual. Summary Judgment is denied on Truesdell’s Title VII and Section 1981 claims
because there is a dispute of fact as to whether FPN’s decision to not rehire or transfer him after
his 2010 layoff was discriminatory.
3.

Tejada

There is a dispute of material fact with regards to both Tejada’s discrimination claim
based on his lay-off from the Powell project, as well as FPN’s failure to transfer / reassign him,
and his wage discrimination claim.
Tejada’s Discrimination Claim based on his lay-off
FPN argues Tejada fails to meet a prima facie case with regard to the 2010 layoff under
two prongs of McDonnell Douglas because he cannot establish he is a member of the protected
class, or that there are similarly-situated non-black employees. The Court will only analyze
these prongs, and presume the rest weigh in Tejada’s favor.
First, FPN asserts that Tejada is not a member of a protected class because in his
Complaint, unlike the other Plaintiffs, Tejada only alleges that he is “black of Panamanian
ancestry.” Later, in his deposition he identifies as African-American. However, FPN offers no

26

legal support that it is insufficient Tejada identified as black in his Complaint. There is enough
evidence on the record to determine that Tejada is a black man living in America, and that Title
VII and § 1981 protect him.
Next, Tejada must demonstrate that similarly-situated African-American employees were
treated more favorably. Tejada presents evidence he was replaced as foreman on the Powell Job
by Eric Woolwine, a white sprinkler-fitter, who had less experience than Tejada. (SMF ¶ 42.)
When Universal was going out of business, FPN took over the subcontract, and FPN agreed with
Universal that it made sense to hire Tejada for purposes of continuity. At that point, Tejada was
the only sprinkler fitter on the job and attended foreman meetings. After approximately a week,
FPN hired Woolwine to be the foreman on the project.
Whether Woolwine was a similarly situated employee treated more favorably is a
disputed issue of fact. First, there is the issue of whether Woolwine and Tejada shared the same
position. If Woolwine had a higher position, then he could not be Tejada’s comparator. See
Hoffman v. MCA, Inc., 144 F.3d 1117, 1124 (7th Cir. 1998) (affirming summary judgment and
finding that “lower-ranking” sales employees were not similarly situated to the managementlevel plaintiff). Before Woolwine came on the project, it seems that at least for a period of time
Tejada was the foreman. Moreover, the fact that Tejada became a journeyman, and was no
longer a foreman after Woolwine was hired, could also be evidence in and of itself that FPN
discriminated against him.

Therefore, the eventual difference in Woolwine and Tejada’s

position, under these circumstances, should not be fatal to Tejada’s claim.
If Tejada meets his prima facie case, then the burden shifts to FPN to demonstrate a
legitimate, non-discriminatory reason for Tejada’s layoff. FPN asserts that it made Woolwine
the foreman, and transferred / rehired him at the end of the Powell project because he had high

27

recommendations regarding his prior work performance. (SMF ¶ 42.) Some of this evidence
raises issues. For example, FPN’s evidence that Woolwine was a more productive pipefitter was
based on information gathered after the Powell project and therefore could not have been
considered in the decision to hire him for the Powell project, although it may have been a
consideration in whether to transfer him to another job at the end of the project. (See Barcik
Dep. 118:14-25) (“Eric was cutting 23-plus [sprinkler] heads in a day and Mr. Tejada was
probably at 15. So there was a productivity disparity.”) FPN further asserts that Tejada was laid
off for the job on which he was hired, which Tejada admits. (SMF ¶¶51-52, 54-55.) See Kadas
v. MCI Systemhouse Corp., 255 F.3d 359, 362 (7th Cir. 2001) (noting that, in some cases, it may
be reasonable to infer that an employer that hires someone from a protected class, and then
promptly fires them, is not guilty of discrimination because there would have been no incentive
to hire the protected worker to begin with). Here, it is not persuasive that because FPN hired
Tejada in the first place, it could not have discriminated against him. In EEOC v. Our Lady of
the Resurrection Med. Ctr., cited by FPN, there was no similar reason of continuity to hire the
plaintiff and therefore the fact that plaintiff was hired was in and of itself evidence of the
employer’s nondiscrimination. 77 F.3d 145, 152 (7th Cir. 1996). Under these facts, however,
the trier of fact could reasonably find that Tejada was only hired because FPN agreed it made
sense for purposes of continuity, but within a week ensured that a white foreman was put on the
project.
Fitters are typically laid off at the end of a project and that is a legitimate business reason.
However, if Tejada had remained the foreman, he would not have been laid off until the end of
the project. Because he was replaced by Woolwine, who remained on the job until it was

28

finished, and Tejada was laid off before the end of the project, Tejada can demonstrate that his
layoff in this particular context was discriminatory.
Tejada – Failure to Transfer / Rehire Claim
There is a factual dispute as to whether FPN failed to transfer / rehire Tejada on the basis
of his race, and whether the transfer went to a non-black who was similarly situated. At the time
Tejada was laid off from the Powell job, in 2010, Tejada presents evidence that FPN had
available other jobs that Tejada was qualified for. (Pl.s’ at SMF ¶ 21.) But, for example, FPN
opted to not use Tejada for the Ogden job, which was ongoing at the time of Tejada’s layoff
from Powell.13 Woolwine was transferred to another job upon completion of the Powell project.
There is enough evidence here to create a dispute of fact.
There is also a dispute as to whether Tejada applied for open positions after he was laid
off. FPN argues Tejada made no efforts to put his name on the Union’s “out-of-work” list, and
did nothing more than leave two general voice messages for an FPN superintendent. (Def.’s
SMF ¶ 62.) Tejada explains that FPN’s criticisms are not in sync with the reality of the fitter
industry; for example, there are no applications for fitter jobs. See Box v. A&P Tea Co., 772
F.2d 1372, 1377 (7th Cir. 1985) (“When an employer uses a promotion system in which
employees do not apply for promotions but rather are sought out by managers, the application
requirement of the prima facie case is loosened somewhat.”) In Box, the Seventh Circuit held
that an employee can make a prima facie case by showing that had he known of the open
position, he would have applied for the position. Id. The Circuit concluded, however, that the

13

Barcik received an e-mail from Turner regarding shortfalls in minority workforce participation on the
Ogden School (Pl.s’ Exhibit 102) (“As of the end of Jan 2011, we show a shortfall or above on the
following: Minority workforce journeymen: 0% of 20%.” Plaintiffs also assert that: “Of the four fitters in
Barcik’s e-mail, only Massey (white) went on to work the Ogden School job; Tejada, Sink (Asian), and
Torres (Hispanic) did not (Exhibit 83, FPN payroll data report (selected jobs) at pp. 85-88).” (Tejada
SMF ¶ 24.)

29

evidence did not suggest “anything more than a vague interest” and plaintiff needed to show
more. Id. Whether Tejada showed more than a vague interest is a disputed fact on the pleadings.
FPN also criticizes Tejada for waiting nearly a year after his layoff in September 2010 before
contacting Acred. But, Tejada testified that he waited until summer before contacting Acred
because “our work is really seasonal driven. So when it starts getting warm again, works really
pick up [sic]. And that’s when I was really pounding the pavement as far as trying to find work
again, [] and at that point I was desperate, and I started calling F.E. Moran again. And it was
more than just that one time.

I kept calling them because I never got any answer back

whatsoever.” (Tejada Dep. 45:15-46:3.) Acred testified that he could not recall whether or not
Tejada called him to express an interest in rehire, and that he did not keep a log of his phone
calls or messages. (Acred Dep. 216:10-217:5.) Again, there are enough disputed facts regarding
how far Tejada went to seek further employment from FPN to make summary judgment
inappropriate.
B. Tejada- Wage Discrimination Claim
A prima facie case of wage discrimination requires a plaintiff to produce evidence that he
or she was paid less than a similarly situated person of a different race. Johnson v. University of
Wis.-Eau Claire, 70 F.3d 469, 478 (7th Cir. 1995). The same evidence supporting the survival of
the termination and failure to transfer / rehire claims also supports the survival of the wage
claim. The parties dispute whether Tejada was discriminated against when he received the wage
of a journeyman for his work on the Powell School project. (See Tejada’s Resp. to SMF ¶ 47.)
Under the collective bargaining agreement, foremen are paid more than journeymen.

For

reasons already discussed, Tejada believed that he was the foreman on the Powell project.
However, Tejada was not paid at the rate of a foreman for his work on the project, not even for

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the time period before Woolwine was hired.

FPN misconstrues Tejada’s testimony as an

admission that the wage disparity was not based on race:
Q: And you weren’t paid as a foreman; correct?
A: Correct.
Q: And that’s what’s required under the collective bargaining
agreement, correct?
A: That is correct.
Q: So that has nothing whatsoever to do with race, correct?
A: No. [objection] No, I don’t believe that him – because he was
foreman and I was not has nothing to with my race as far as the
pay. That’s how it is. If you’re a foreman, you get paid more. It
doesn’t matter because you’re white or because you’re black.
(Tejada Dep. at 151:24–152:17.) FPN interprets Tejada’s testimony to indicate that Tejada did
not believe he was paid less based on his race. (Def.’s SMF at ¶ 49.) Tejada disputes this
interpretation, and explains that he only meant that the collective bargaining agreement dictates
wage regardless of race, but that he was discriminated against when he was paid as a journeyman
the first week that he was a foreman, and the discrimination continued in the subsequent weeks
because he thought he would be a foreman and would not be replaced. The testimony FPN relies
on is too unclear to be dispositive of the wage claim. It is reasonable to connect the evidence of
discrimination to the wage discrepancy. Tejada alleged in his EEOC Intake Questionnaire that
he believed he was discriminated against when he “did duties of & was told I’d be foreman,
Instead was replaced by a Jr. Caucasian.” (Tejada Dep., Ex. 15.) The questionnaire supports
that Tejada believed that Woolwine’s replacing him as foreman was a discriminatory act. It
reasonably follows that when Tejada was paid less for the same work as Woolwine, this was
further evidence of discrimination.
The wage claim also is not preempted by § 301 of the Labor Management Relations Act,
1947, 29 U.S.C. § 141 et seq. (LMRA). FPN relies on the case Gelb v. Air Con. Refrigeration &
Heating, Inc., but the case is distinguishable. 356 Ill. App. 3d 686, 694-96 (IL 1st Dist. 2005).
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In Gelb, there was no federal claim at issue. There, the plaintiffs sought relief under the Illinois
Minimum Wage Act, 820 ILCS 105/1 et seq. (West 1998), and not Title VII. As Tejada points
out, Title VII rights are independent of any rights afforded by a collective bargaining agreement.
Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 (1974). Section 301 does not completely
preempt all claims that touch upon rights that have some connection to a collective bargaining
agreement. United States v. Palumbo Bros., Inc., 145 F.3d 850, 864 (7th Cir. 1998). At trial,
FPN may invoke the collective bargaining agreement in its defense and that the facts underlying
Tejada’s wage discrimination claims overlap with any claim he could have brought under the
collective bargaining agreement. But, as the Court noted in its opinion on motion to dismiss, that
does not result in preemption. See Crosby v. Cooper B-Line, Inc., 725 F.3d 795, 800-801 (7th
Cir. 2013) (explaining that defending against a claim by referring to a collective bargaining
agreement does not transform the claim into one brought under § 301). For those reasons,
summary judgment is denied on Tejada’s wage claim.
CONCLUSION
For these reasons, the Court denies FPN’s Motions for Summary Judgment against
Martin [193], Truesdell [197], and Tejada [201].

________________________________________
Virginia M. Kendall
United States District Court Judge
Northern District of Illinois
Date: _4/10/2017_

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