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

Filing 323

MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 3/30/2018. The Court held a twelve-day bench trial between April 10, 2017 and May 12, 2017 to resolve remaining claims, which included: unlawful discrimination against Martin under Section 1981 (Count III) based on FPN's failure to transfer him after his 2009 layoff and under Title VII (Count I) and Section 1981 (Count III) based on FPN's failure to transfer or rehire him after his 2010 layoff; unlawful discrim ination against Truesdell under Section 1981 (Count III) based on FPN's failure to transfer him after his 2009 layoff and under Title VII (Count I) and Section 1981 (Count III) based on FPN's failure to transfer or rehire him after his 2010 layoff; and unlawful discrimination against Tejada under Section 1981 (Count III) based on his 2010layoff and FPN's subsequent failure to transfer or rehire him. The Court concludes that Plaintiffs Martin, Truesdell and Tejada have not proven that FPN laid off, failed to transfer or failed to rehire them because of their race. Judgment to follow. Mailed notice(lk, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KENNETH MARTIN, et al.,

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)
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)
)
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)
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Plaintiffs,
v.
F.E. MORAN, INC. FIRE PROTECTION OF
NORTHERN ILLINOIS,
Defendant.

Case No. 13 C 3526
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Plaintiffs Kenneth Martin, Aaron Truesdell and Johnny Tejada filed this action against
their former employer, F.E. Moran, Inc., Fire Protection of Northern Illinois (FPN) alleging
racially discriminatory employment practices. In their First Amended Complaint, Plaintiffs each
alleged violations of Title VII of the Civil Rights Act (Count I) and of 42 U.S.C. § 1981 (Count
III) based on their layoffs and FPN’s failure to transfer or rehire them. (Dkt. No. 21.) Plaintiff
Tejada also alleged two claims of wage discrimination in violation of Title VII of the Civil
Rights Act (Count II) and of 42 U.S.C. § 1981 (Count IV). (Id.)
On April 10, 2017, the Court denied FPN’s Motion for Summary Judgment as to all of
Plaintiffs’ claims. (Dkt. No. 280.) Specifically, with regard to Counts I and III, the Court found
that Martin’s and Truesdell’s discrimination claims survived, not because of their respective
layoffs, but because of FPN’s subsequent failure to transfer or rehire. (Dkt. No. 280 at 22, 24.)
The parties subsequently narrowed the remaining claims by stipulation.

Plaintiff Tejada

stipulated that he waived his claim for unlawful discrimination under Title VII in Count I (Dkt.
No. 301) and for wage discrimination under Title VII and Section 1981 in Counts II and IV.
1

(Dkt. No. 294.) Plaintiffs Martin and Truesdell stipulated that they waived their claims for
unlawful discrimination in Counts I and III based on FPN’s failure to rehire them following their
2009 layoffs. (Dkt. No. 307; see also Dkt. No. 220 at 7, n.8-9; Dkt. No. 221 at 7, n.6-7.)
The Court held a twelve-day bench trial between April 10, 2017 and May 12, 2017 to
resolve the remaining claims, which included: unlawful discrimination against Martin under
Section 1981 (Count III) based on FPN’s failure to transfer him after his 2009 layoff and under
Title VII (Count I) and Section 1981 (Count III) based on FPN’s failure to transfer or rehire him
after his 2010 layoff; unlawful discrimination against Truesdell under Section 1981 (Count III)
based on FPN’s failure to transfer him after his 2009 layoff and under Title VII (Count I) and
Section 1981 (Count III) based on FPN’s failure to transfer or rehire him after his 2010 layoff;
and unlawful discrimination against Tejada under Section 1981 (Count III) based on his 2010
layoff and FPN’s subsequent failure to transfer or rehire him. After listening to the testimony
presented by both parties and reviewing the documents entered into evidence at trial, the Court
makes the following findings of fact and conclusions of law, pursuant to Federal Rule of Civil
Procedure 52.
FINDINGS OF FACT
I.

FPN Organization
FPN employs sprinkler fitters to install sprinklers for fire safety in buildings ranging from

public schools, to banks, to high rises in and around Illinois. FPN was formed in 2007, when a
corporation named F.E. Moran Fire Protection Northern Illinois split into two offices: FPN,
covering the Chicagoland area, and F.E. Moran, which continued to operate out of Champaign,
Illinois.

(Tr. 1396:18-1397:5 (Metcalfe)).

Both FPN and F.E. Moran are wholly-owned

subsidiaries of parent company Armon, Inc. (“Armon”) (Tr. 1398: 11-13, 1399: 3-5 (Metcalfe)).
2

FPN operated separate and apart from other affiliated companies of the Armon Group and
operated out if its own location in a separate building as Armon. (Tr. 1489:24-1490:2, 1492:1921 (Metcalfe)).
Alan Metcalfe served as president of FPN from September 2007 until April 1, 2016. (Tr.
1396:18-1397:5, 1401:1-2 (Metcalfe)). As president, Metcalfe reported to Brian Moran, the
president and later CEO of Armon. (Tr. 1399:22-1400:6 (Metcalfe)). Between 2008 and 2017,
John Hebert served under Metcalfe as vice president and later senior vice president of FPN. (Tr.
1271:16-22 (Hebert)). In both roles, Hebert oversaw all departments within FPN and was
responsible for the superintendents. (Tr. 1254:4-25 1303:5-6 (Hebert)). Hebert testified that he
could not recall there being any African-American executives at FPN during the time he worked
there. (Tr. 1279:24-1281:10 (Hebert)). Neither Metcalfe nor Hebert made any employment
decisions regarding sprinkler fitters including Plaintiffs. (Tr. 1302:25-1303:4, 1312:8-13
(Hebert); Tr. 1033:8-10 (Acred); Tr. 1490:6-21, 1491:3-16 (Metcalfe)).
Superintendents are responsible for scheduling the manpower and materials necessary to
complete jobs won by FPN. (Tr. 855:6-8 (Sullivan); Tr. 1014:23-25 (Acred)). Accordingly,
superintendents have ultimate authority at FPN over employment decisions regarding sprinkler
fitters, including whether to hire, transfer, layoff or rehire a particular fitter. (Tr. 854:14-24
(Sullivan); Tr. 1797:25, 1798:1-2, 9-23 (Waters); Tr. 1127:18-20, 1214:6-8 (Barcik); Tr.
1343:12-16 (Hebert)). Superintendents are also responsible for finding and assigning minority
fitters to comply with minority hiring goals. (Tr. 1788:5-7 (Waters)).
Some jobs require a project manager, whose responsibility it is to manage the budget,
review and monitor the project design, handle logistical issues including safety, track the number
of hours used on a job and generally to ensure that the superintendents have whatever
3

information they needed for that particular job. (Tr. 1125:8-18, 11:26:5-9 (Barcik); Tr. 1746:231747:9, 1753:8-24 (Waters)).

During the time Plaintiffs were employed by FPN, project

managers also provided input related to hiring decisions, in particular with regard to
productivity, based on the project managers’ observations in the field. (Tr. 1209:18-1211:11,
1215:7-11, 1216:12-17 (Barcik); Tr. 1911:25-1912:5 (Waters)).
Edward Sullivan, Jr. served as senior superintendent from 2001 until February 2009,
initially for F.E. Moran Fire Protection Northern Illinois and, after the split, for FPN. (Tr.
853:12-17; 857:10-12 (Sullivan); Tr. 917:2-14 (Acred); Tr. 1126:10-16 (Barcik)). During that
time, other FPN superintendents reported to Sullivan, including: John Waters, who served as
superintendent from summer 2007 until early 2008; Scott Acred, who became superintendent in
January 2008; Steve Procter, who served as superintendent from July 2008 until January or
February 2009; and Mark Parker. (Tr. 855:14-22, 857:13-18 (Sullivan); Tr. 1734:15-1734:11
(Waters); Tr. 917:2-4 (Acred); 1623:18-1624:20 (Procter)). FPN has never hired an AfricanAmerican superintendent; all FPN superintendents have been white males. (Tr. 1405:21-1406:2
(Metcalfe)).
Sullivan testified that the FPN “field management team”—a group of superintendents and
project managers that discussed hiring decisions—existed as early as 2007, while he was senior
superintendent.

(Tr. 888:25-889:3 (Sullivan); Tr. 1797:13-1798:8 (Waters)).

The field

management team continued after Sullivan was transferred in 2009 and as other individuals
became superintendent.
Sullivan testified that as senior superintendent, he made employment decisions in
conjunction with other superintendents, including Acred, and would consider the opinions of
project managers. (Tr. 875:24-876:4; 877:11-15 (Sullivan)). Sullivan, who worked with Acred
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for more than 20 years, testified that Acred is a good evaluator of personnel and job situations
and that he valued Acred’s opinion. (Tr. 891:6-12 (Sullivan)). In fact, Sullivan and Acred
separately testified that, during Sullivan’s tenure as senior superintendent, they never disagreed
with each other’s evaluations of personnel or opinions regarding layoffs or transfers. (Tr. 891:1317 (Sullivan); Tr. 1044:1-6 (Acred)).
When Sullivan was transferred to a different role in February 2009, Acred became
primarily responsible for employment decisions related to fitters and made those decisions in
conjunction with the field management team, which from 2009 until roughly 2012 consisted of
Acred, project manager Robert Barcik, and project manager John Waters.1 (Tr. 918:3-919:18
(Acred); Tr. 1755:5-10 (Waters)).

Despite project managers’ involvement on the field

management team, superintendents at all times retained ultimate authority for hiring decisions
and for finding and assigning minority fitters for jobs. (Tr. 1214:6-7 (Barcik); Tr. 1787:161788:11, 1797:25-1798:23 (Waters)).
II.

Collective Bargaining Agreement and the Local 281
At all relevant times, FPN was subject to the terms of the collective bargaining agreement

(“CBA”) between the National Fire Sprinkler Association and Local 281 for its sprinkler fitters
within Local 281’s geographic jurisdiction, which includes all of Chicagoland and Northwest
Indiana. (Final Pretrial Order (FPTO), Ex. 1 Statement of Uncontested Facts (SOUF) at ¶ 5;
JX36 Collective Bargaining Agreement (CBA), eff. June 2008; JX37 CBA, eff. June 2011). FPN

can hire only union workers and largely hires fitters from Local 281.

(Tr. 859:23-860:4

(Sullivan)).
1

Waters worked for FPN as a superintendent from summer 2007 until early 2008, a project manager from
2008 to early 2011, and then as a sales executive. (Tr. 1734:15-1735:11 (Waters)).

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There are two classes of employee fitters, foreman and journeymen. Foremen take on a
managerial role and journeymen work under a foreman. A foreman’s responsibilities include
testing equipment, tracking hours worked by journeymen and completing payroll pay work. (Tr.
53:16-54:8. (Martin)). Martin and Truesdell worked in both foreman and journeyman sprinkler
fitter roles for FPN; Tejada worked only as a journeyman fitter for FPN. (Tr. 53:5-8 (Martin); Tr.
323:6-7, 20-23 (Truesdell); Tr. 774:15-17 (Tejada)).

The terms and conditions of Plaintiffs’

employment with FPN, including pay, were governed by the union contract.

(Tr. 380:17-19

(Truesdell); Tr. 793:4-6, 794:15-17 (Tejada); JX36; JX37).

Local 281 sprinkler fitters are hourly wage employees; there is no provision for a salary
in the CBA.

(JX36; JX37).

The CBA does provide different wage rates for foremen and

journeymen fitters and requires that “[o]ne man shall be designated as Foreman on each job” for the
purposes of wages; therefore, if there is only one fitter assigned to a job, that fitter receives foreman
pay. (JX36; JX37; Tr. 163:21-23 (Martin); Tr. 382:5-10 (Truesdell); Tr. 794:5-14 (Tejada)).

The CBA also requires that contractors provide a fitter four-hour notice that he or she is
being laid off. (JX36; JX37). The CBA does not include any provisions addressing the hiring,
transfer, layoff or rehire of fitters—including any provision requiring that hiring decisions be
based on seniority. (Id.). It does, however, include an anti-discrimination policy, which states:
“There shall be no discrimination with regard to race, color, religion, sex, age or national origin by
either the Union or the Employer relative to employment or conditions of employment.” (Id.) None

of the Plaintiffs ever filed any type of grievance with Local 281 regarding their employment with
FPN either during their employment or thereafter. (Tr. 162:21-23, 187:23-188:2 (Martin); Tr.
392:6-8 (Truesdell); Tr. 811:11-16 (Tejada)).

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Local 281 does not have a system for letting its members know of available jobs. (Tr. 98:1012 (Martin); Tr. 337:24-338:6 (Truesdell)). Rather, it is standard in the sprinkler fitter industry for
fitters to obtain work by calling superintendents of contractors to inquire as to any available jobs.
(Martin Tr. 138:9-21; 205:14-23; Truesdell Tr. 393:15-395:6; Tejada Tr. 778:24-779:9, 822:23823:2; Tr. 1039:20-24 (Acred); Tr. 1311:13-24 (Hebert); Tr. 1799:16-19 (Waters)).

III.

FPN Hiring Practices
A.

The Hiring Process Generally

FPN sales personnel prepare and submit bids for jobs. (Tr. 1736:21-1738:4; 1738:111739:24 (Waters)). One of the largest components of such bids is the estimated labor cost—i.e.,
the amount of labor and number of hours to be spent on the job. (Tr. Tx. 1742:18-1743:9
(Waters)). Whether the job is ultimately profitable depends, in part, on whether the labor
estimate in the bid is accurate. ((Tr. 1743:10-24; 1746:14-17 (Waters); Tr. 1107:10-21 (Acred)).
Superintendents are made aware of upcoming jobs as soon as the job is sold. ((Acred
30(b)(6) Dep. Des. 23:3-8, 23:14-17)). They are then responsible for evaluating how many
employees will be needed for the job and when the job will start. (Id.). FPN does not seek new
employees each time it gets a new job; rather, the superintendent often transfers fitters from one job
to another. (Acred 30(b)(6) Dep. Des. 45:2-11)

When FPN does hire new fitters for a job, it does so either from an out-of-work list
provided by the union or based on calls informing superintendents that certain fitters need work.
(Tr. 859:19-22 (Sullivan)). Consistent with industry standard, FPN does not have a policy or
practice of posting or advertising openings for sprinkler fitter jobs nor did it have an application
form for sprinkler fitter jobs. (FTPO, Ex. 1 at ¶ 6; Tr. 1311:25-1312:2 (Hebert); Tr. 138:22-139:11
(Martin); Tr. 395:7-9 (Truesdell); Tr. 1034:11-16 (Acred); Tr. 1799:20-21 (Waters)). Whether a

7

fitter actually gets work from calling the superintendent “always” depends, at least in part, on
timing. (Tr. 895:14-25 (Sullivan); Tr. 1980:15-21 (Waters)).
At the end of a job, the fitters are either transferred to other jobs or laid off. (Tr. 861:21-25

(Sullivan)). The fitter might also be asked to “sit” meaning to wait a few days or weeks for work
without being laid off. (Tr. 1913:21-1914:13; 1935:2-11 (Waters)). While “sitting” the fitter is
free to seek employment elsewhere including for a competitor sprinkler fitter company. (Tr.
1980:11-14 (Waters)). A fitter’s benefits including health insurance only accrue based on actual
hours worked; therefore, when not working, a fitter not only earns no wage but also accrues no
benefits. (Tr. 1980:3-10 (Waters); Tr. 1983:11-1984:4 (Waters)). If laid off completely, however,
the fitter can at least collect unemployment benefits. (Tr. 1913:21-1914:1 (Waters)).
Sullivan testified that whether a fitter is transferred or laid off depended primarily on
FPN’s upcoming workload. (Tr. 861:21-862:6 (Sullivan)). He explained that as a job was
winding down, the superintendent forecasts incoming jobs and estimates manpower needs. (Tr.
860: 17-25 (Sullivan)). He described it as “kind of a juggling act, just trying to . . . keep people
employed.” (Id.) Sullivan explained also that, to assist in this process, superintendents would
keep schedules of ongoing and upcoming jobs and have meetings with project managers and
designers about those jobs. (Tr. 860:17-861:20 (Sullivan)).
Acred testified that when making a transfer decision, he considered the work available, if
any, and who was best suited for that work, taking into account the speed and productivity of the

fitters. (Tr. 1028:14-25, 1029:1-2, 25 1030:1-15 (Acred)). Similarly, Waters testified that
whether a fitter was transferred to another job or asked to “sit” depended on the timing, the jobs
available, and the qualities and qualifications of the particular fitter. (Tr. 1980:15-21 (Waters)).
Plaintiff Martin testified that, as he understood it, if a fitter was “doing a good job” and “FPN had
8

work,” FPN would transfer the fitter to a different job site when another job ended. (Tr. 140:9-17
(Martin)).

FPN presented some testimony that fitters with company service trucks, which hold all
materials necessary for a job, were more likely than fitters without service trucks to be
transferred or kept busy during slow times and not laid off. Waters testified, for example, that
fitters with trucks could more easily get from job-to-job with all the necessary tools and,
therefore, were more often transferred out to work for short periods of time on multiple jobs.
(Tr. 1804:17-1810:6, 1862:9-1863:2, 1979:15-1980:2 (Waters)). Waters also testified that FPN

gave service trucks to the best foreman, or the “all-star team” (Tr. 1805:9-17, 1962 (Waters));
however, there was little other evidence confirming that was the case.
Armon’s Employee Manual applies to all Armon entities, including FPN. The Manual
contains an Equal Employment Opportunity policy that prohibits discrimination based on race.
(JX38 at 23; Tr. 1447:16-1448:14 (Metcalfe)). The Manual also contains an Anti-Harassment

policy that prohibits the use of ethnic slurs or racial epithets and other conduct based on a
person’s race and provides a complaint procedure through which employees can report concerns.
(JX38 at 23-24; Tr. 1505:17-1506:10 (Metcalfe)).

No other provisions in the Manual bear

directly on the hire, transfer, layoff, or recall of sprinkler fitters. (JX38; 11/12/15 Acred 30(b)(6)
Dep. Des. 9:2-10:10).
Metcalfe ensured FPN supervisors and employees were trained on the EEOC policy. Tr.
1514:6-8 (Metcalfe)). Metcalfe testified that FPN held a training sometime before 2009 that
involved counsel and brought in a subject matter expert to explain FPN’s expectations; FPN
witnesses testified that, since then, FPN has held periodic refresher trainings during which the
policy and complaint procedures were explained.
9

(Tr. 1514:9-23 (Metcalfe); Tr. 1311:6-8

(Hebert); Tr. 1250:12-23 (Barcik)). Some FPN witnesses testified they were aware of the policy
and understood it prohibited discriminating based on race; however, Acred could not recall any
training on the policy within the last ten years. (Tr. 1271:17-24, 1310:20-25 (Hebert); Tr.
1037:17-1039:15 (Acred); Tr. 1215:13-24 (Barcik)). Martin, Truesdell and Tejada also each
received and reviewed a copy of the policy during new employee orientation and understood that
it prohibited discrimination based on race; Martin testified that he never received training on the
policy.

(Tr. 67:11-17, 161:19-162:16 (Martin); Tr. 389:23-392:1 (Truesdell); Tr. 769:6-7,

821:13-822:13 (Tejada); DX22; DX59; DX110). None of the Plaintiffs raised any complaints of

discrimination with FPN. (Tr. 162:21-23 (Martin); Tr. 392:9-12 (Truesdell); Tr. 825:14-16
(Tejada)). Hebert never received any complaints that Acred was making unfair decisions, acting
in a discriminatory manner or had made race-based statements. (Tr. 1308:1-10 (Hebert)). No
one ever made a complaint concerning discrimination or racist comments at FPN to either
Procter or Barcik. (Tr. 1694:12-20, 1695:3-13 (Procter); Tr. 1215:25-1216:2 (Barcik)).
B.

The Great Recession

The sprinkler fitter industry began to slow down in 2008 when the Great Recession hit.
(Tr. 198:21-199:25, 200:1-10; 209:24-210:7 (Martin); Tr. 882:1-8, 907:18-908:1 (Sullivan);
DX99). Sullivan testified that, toward the end of his tenure, FPN was not getting as many jobs;
as a result, just prior to his transfer, he had to lay off more people as jobs finished up. (Tr.
882:1-14, 900:10-22 (Sullivan)). He testified also that he could not recall there being any
upcoming jobs when he left his role as senior superintendent in February 2009. (Tr. 901:11-14
(Sullivan)). Acred similarly testified that the economic slowdown began just as he became
superintendent in early 2008 and that he faced layoff decisions as a result. (Tr. 1051:15-19
(Acred)).
10

There was, however, contradictory testimony regarding the actual impact of the Great
Recession on FPN’s business, particularly after 2010. Hebert testified that, in the time period of
about 2009 to 2010, a handful of the 60 to 70 Local 281 signatory contractors—i.e., FPN’s
competitors—actually went out of business. (Tr. 1312:5-7, 1314:5-19 (Hebert)). Metcalfe
testified that, during that same time period, the total workforce at FPN decreased from 81
employees in 2009 to just 71 in 2010, and the number of sprinkler fitters employed decreased by
nearly half: from 47 in 2009 to 28 in 2010.

(Tr. 1515:21-1517:24 (Metcalfe); Tr. 1300:9-16

(Hebert)). Metcalfe described 2010 as “a terrible year.” (Tr. 1517:11 (Metcalfe)).
Yet, Metcalfe also testified that FPN’s workload “doubled” in 2010. (Tr. 1523:3-11
(Metcalfe)). Similarly, Hebert testified that FPN’s business increased “significantly” “from 2007
. . . until [his] last day of employment.” (Tr. 1385:25-1387:5 (Hebert)). Thus, to the extent
FPN’s business was affected by the recession, it began to recover at least as early as 2010.
C.

Performance Evaluations

Due to the economic downturn, around 2008 FPN put a greater focus on the speed and
productivity of its workforce in order to better compete against fellow contractors fighting for the
same jobs. (Tr. 895:1-25 (Sullivan); Tr. 1042:11-25 (Acred); Tr. 1826:8-17 (Waters)). In order
to evaluate its workforce and as discussed in more detail below, the field management team
developed tools for ranking fitters based on performance. (Tr. 1313:1-12 (Hebert)). FPN did not
focus solely on fitters; it also assessed other personnel, for example, in design and sales, and
made personnel cuts and pay cuts throughout the company. (Tr. 1301:1-8, 1313:1-17 (Hebert)).
However, FPN could not cut the pay of its fitter workforce because it is governed by the CBA.
(Tr. 1313:18-1319:4 (Hebert)).

11

When Metcalfe became president of FPN in late 2007, he pushed for the development of
a workforce rating system in an effort to create a standardized, objective approach to evaluating
and improving the FPN workforce. (Tr. 1491:17-1492:7 (Metcalfe)).

Around February 2008,

the field management team created a chart called the “Manpower skills list,” that assigned each
fitter a “weighted rank”—based on ratings in 12 labor skills (i.e., “large projects,” high rise,”
“relocates,” etc.) and seven soft skills (i.e., customer relations, constructive communication,
paperwork, etc.)—and a number one through four indicating that individual’s value to the
company. (JX22; Tr. 879:2-25, 880:1-881:6, 888:3-9 (Sullivan); Hebert (individual) Dep. Des.
142, 159-160).

Acred, Waters and Barcik testified that speed and productivity were factors

considered in rating a fitters’ labor skills. (Tr. 1110:21-1112:8 (Acred); Tr. 1212:19-1213:14
(Barcik); Tr. 1836:7-11 (Waters)). On the February 2008 chart, Martin received a weighted rank of
“81” out of a possible 160, and a value rank of “3”; Truesdell received a weighted rank of “84” and
value rank of “3.” (JX22).

In September 3, 2008, the field management team created the “Field Rating System”
chart, which ranked fitters by letter grade. (Tr. 888:10-889:17, 897:1-4 (Sullivan); JX21.) To
create this chart, the field management team held meetings and discussed each fitter’s
qualifications—for example, certain skills in installation, experience with different systems,
attitude, etc.—and assigned rankings based on that discussion. (Tr. 871:22-873:3 (Sullivan)).
Metcalfe sat in on the meetings but provided no input on the rankings. (Tr. 872:9-10 (Sullivan);
(Tr. 1155:10-13 (Barcik)). Hebert also was involved in setting up the ranking systems but
provided no input on the evaluations. (Tr. 1301:6-14 (Hebert)). The field management team did
not use a rubric, scoring sheet, or any other written criteria to assign the letter grades. (Tr.
872:11-873:3 (Sullivan)). Also, FPN did not maintain lists of employees that identified specific
12

skills or experiences; therefore, the field management team’s discussions were based only on
personal knowledge from experience working with certain fitters. ((11/12/15 Acred 30(b)(6)
Dep Des. 50:24-52:4)). Both Sullivan and Acred testified that the field management team used
the rankings in the Field Ratings System chart to assist in layoff decisions during the economic
slowdown.

(Tr. 888:10-889:17, 897:1-4 (Sullivan); Tr. 1085:20-1086:11 (Acred)). On the

September 2008 chart, Martin received a B ranking and Truesdell received a B+ ranking.
(JX21.)
A few months later on January 9, 2009, the field management team created yet another
“Field Rating” chart. (DX10). For each fitter, the chart reported the fitter’s “Position,” as foreman,
fitter, or apprentice; a letter grade indicating the fitter’s “Value”; and a directional arrow indicating
the fitter’s “Projection/Status”—i.e., an arrow pointing up if the fitter’s value was trending upward,
horizontally if being maintained and down if trending downward. (DX10; Tr. 1303:7-19 (Hebert)).

Acred testified that this chart was also used in making layoff decisions. (Tr. 1025:1-20, 1083:1323; 1084:1-1085:18 (Acred); PX132; DX10). The January 2009 chart listed both Martin’s and

Truesdell’s positions as foreman. (DX10).

Martin received a B- ranking with his status

maintaining and Truesdell received a B+ ranking with his status maintaining. (DX10). In
September 2009, FPN updated the letter grades in the “Field Rating” chart. Martin’s ranking
improved to a B and Truesdell’s stayed at a B+. (PX133).
FPN did not update or use the ranking charts after 2009. Hebert testified that, as FPN
developed its workforce, the supervisors no longer needed to do an in-depth evaluation of each
individual fitter and the charts became irrelevant. (Hebert (individual) Dep. Des. 156-157).
Years later around 2011 or 2012, the field management team created a list of interview
questions to highlight the criteria the team considered when hiring a new fitter.
13

(JX23; Tr.

1040:10-1043:11 (Acred); Tr. 1242:23-1243:23 (Barcik); Tr. 1801:1-11 (Waters); JX23). Acred
testified that this list reflected FPN’s “new productivity expectations.”

(Tr. 1040:10-17

(Acred)). Among other things, the list indicated that the team expected a fitter be able to install a
minimum 15 sprinkler heads in one day.

(JX23; Tr. 1041:24-1042:2, 11-12 (Acred); Tr.

1244:12-14 (Barcik); Tr. 1801:7-20 (Waters)). Barcik testified that the standard has since
increased and is now higher than 15 heads-per-day. (Tr. 1244:12-16, 1249:7-10 (Barcik)).
Overall, however, Acred admitted that FPN does not actually track heads-per-day productivity
by individual fitters. (Tr. 1110:16-20 (Acred)).
In summary, FPN never had a consistent formal practice when it came to hiring or
evaluating performance. It is also clear that hiring, transfer, and layoff decisions were made by
the superintendent with input from the field management and based on the team members’
familiarity with the fitters and their availability. Because there were not objective, consistent
standards for evaluation, evidence comparing fitters based on what little recording FPN did do
was basically meaningless. Of course, without objective standards, FPN could have made its
decisions based on bias and discrimination but the timeline of the Plaintiffs’ careers simply do
not support that.
V.

Individual Plaintiffs’ Careers
A.

Plaintiff Kenneth Martin

Plaintiff Kenneth Martin, an African American sprinkler fitter, worked for FPN or its
predecessor in the late 1990s, from 2005 to 2009 and again for a few months in 2010. Martin
first worked at F.E. Moran Fire Protection starting in 1998. (Tr. 51:7-9 (Martin)). Martin was
hired by then-foreman Sullivan, who testified that as he recalls, Martin was “a very good
worker.” (Tr. 865:11-12 (Sullivan)). Martin similarly testified that he and Sullivan had a “pretty
14

good” working relationship. (Tr. 51:7-52:9 (Martin)). Sullivan hired Martin to work on a job for
DisneyQuest—a job which had no minority hiring requirement.

(Tr. 51:19-52:2, 148:1-7

(Martin); Tr. 897:13-17 (Sullivan)). Martin testified that he had been hired to replace a white
fitter on the job but then could not recall why he had replaced that fitter or who at FPN had told
him that. (Tr. 201:1-5, 222:11-224:17 (Martin)). Martin subsequently left his employment with
F.E. Moran Fire Protection, though he could not recall whether he was laid off or left specifically
to work for another company. (Tr. 51:15-18, 148:1-149:3 (Martin)). Regardless, after leaving
Martin worked consistently as a sprinkler fitter for other contractors. (Tr. 52:18-21 (Martin)).
In 2005, Sullivan, now superintendent, again hired Martin to work for F.E. Moran Fire
Protection and in 2006 promoted Martin to foreman. (Tr. 52:14-53:15 (Martin)). From 2006 to
2009, Martin worked consistently, averaging 40 hours per week; Sullivan transferred him from
job to job and never laid him off. (Tr. 54:9--55:3; 56:4-10 (Martin); Tr. 869:5-12 (Sullivan)).
During Sullivan’s tenure, FPN had ample job opportunities for fitters, in particular at a series of
projects performed for DePaul University. (Tr. 887:8-14 (Sullivan); Hebert 30(b)(6) Dep Des.
195-196)). There were no minority requirements on the DePaul jobs. (Tr. 897:18-20 (Sullivan)).
In 2008 and 2009, Martin worked as a foreman on the DePaul O’Malley Lewis project, a
retrofit job at two adjoining high-rise buildings at DePaul’s downtown campus. (Tr. 60:13-15,
61:14-15 (Martin); Tr. 920:10-12 (Acred); Hebert 30(b)(6) Dep Des. 195-196). Sullivan was the
original superintendent of the O’Malley Lewis project and assigned Martin a minivan when
Martin started as foreman on the O’Malley Lewis project. (Tr. 65:14-15 (Martin); Tr. 920:1-4
(Acred); Tr. 1783:18-1784:5 (Waters)). The minivan was not equipped with the same tools as a
service truck, which Martin never had. (Tr. 1978:1-9 (Waters)). Sullivan assigned it to Martin
as a sort of experiment and FPN never assigned a minivan to any other fitter. (Tr. 1977:17-25
15

(Waters)). Acred took over as superintendent of the project when Sullivan transferred roles in
February 2009. (Tr. 920:5-9 (Acred)). As superintendent, Acred assisted Martin whenever he
had questions on the job and transferred Martin to other jobs whenever there was a lull in work at
the O’Malley Lewis project. (Tr. 147:2-12, 156:1-13 (Martin); JX32.)
The DePaul jobs, including the O’Malley Lewis project, came in under budget and were
profitable for FPN.

(Tr. 870:7-13 (Sullivan); Hebert (individual) Dep. Des. 40:7-11). Martin

believed he had performed well on the O’Malley Lewis project because he had received only
positive feedback and the work had been completed in fewer hours than budgeted. (Tr. 66:9-15
(Martin)). However, FPN attributes the success of the DePaul projects to the bidding and not to
the contribution of the foremen like Martin. (Tr. 1325:5-16 (Hebert)). Acred, Hebert and
Waters testified that the DePaul jobs were bid with plenty of hours and, therefore, obtained at a
high margin from the outset. (Tr. 1050:10-18 (Acred); Tr. 1325:7-16 (Hebert); Tr. 1830:18-22
(Waters)).
Martin was laid off on September 10, 2009 when the O’Malley Lewis job ended. (FPTO,
Ex. 1 SOUF ¶ 19; PX25). There is little evidence as to why or how Martin was laid off in 2009.
Martin testified that, after the O’Malley Lewis job, FPN told him that they would call him when
they found a job for him but, after waiting and never receiving a phone call, he assumed he had
been laid off and filed for unemployment. (Tr. 218:21-219:8 (Martin)). Martin’s layoff form
reports the explanation for his layoff as “lack of work” and lists him as “eligible for rehire.”
(PX25). Acred testified that the decision to layoff Martin in 2009 was a “group decision” among
the field management team but did not recall any conversations regarding the decision to lay off
Martin. (Tr. 922:1-16 (Acred)). Waters did not recall anything about Martin’s 2009 layoff. (Tr.
1784:23-1785:6 (Waters)).
16

In January 2010, Martin began working for another fire protection company, Universal
Fire Protection (“UFP”). (Tr. 86:24-87:9 (Martin)). UFP, a minority-owned company, hired
Martin as foreman for the Boone Clinton project, the construction of a new school for Chicago
Public Schools. (Tr. 86:10-87:25 (Martin)). Martin faced several challenges beyond his control
while working for UFP on the Boone Clinton project including that UFP failed to timely deliver
pipes to the worksite and the pipes that were delivered were poorly fabricated. (Tr. 90:13- 95:5
(Martin); PX0023). These challenges caused delays in installation and, ultimately, leaks in the
sprinkler system installed. (Tr. 191:1-7 (Martin)). Martin recorded these issues in his daily
construction log. (Tr. 89:10-12, 90:3-22 (Martin); PX23).
FPN took over the Boone Clinton subcontract in June 2010 after UFP went out of
business. (Tr. 94:6-10 (Martin); 11/11/15 Hebert 30(b)(6) Dep. Des. 122:3-21). By June 2010,
the project was about 75% complete but behind schedule; FPN agreed to assist the general
contractor “out of a jam” in meeting its strict deadline in exchange for potential “fortunate
returns.” (Tr. 1324:6-14, 1350:11-21 (Hebert); PX200). Because UFP had already installed
much of the sprinkler system, FPN negotiated provisions in its contract with the general
contractor stating that FPN agreed only to provide labor to assist in completing the project and
was otherwise not responsible for any of UFP’s contractual obligations and not liable for the
performance and reliability of the sprinkler system. (Tr. 1266:13-1269:2, 1327:11-1328:12
(Hebert); JX27).
Hebert recommended that Acred retain Martin as foreman for the Boone Clinton for
continuity purposes. (Tr. 1353:21-1354:9 (Hebert); PX200). Acred agreed and hired Martin as
foreman. (Tr. 1033:11-18 (Acred)). Hebert then submitted a schedule for completing the job to
the general contractor and discussed this schedule with Martin. (Tr. 1323:25-1324:16 (Hebert);
17

JX4). Hebert described the schedule as one FPN “could easily meet” because it included added
“fluff” time for unexpected issues. (Tr. 1324:6-14 (Hebert)). The schedule budgeted 639 hours
and aimed for substantial completion by August 6, 2010. (JX4). Martin completed the job on
time in August 2010 but used approximately 1,360 hours of labor—more than double the
budgeted total. (Tr. 94:18-21 (Martin); JX34).
Martin was laid off on August 9, 2010 when the Boone Clinton job ended. (Tr. 94:2095:16 (Martin); PX26). Again, Acred testified that the decision to layoff Martin in 2010 was a
group decision among the field management team. (Tr. 932:24-933:4 (Acred)). Martin’s 2010
layoff form reports the explanation for his layoff as “lack of work” and lists him as “eligible for
rehire.” (PX26). Following his layoff, Martin reached out to FPN a few times to inquire about
work: twice to Acred in September and October 2010 and once by email to Hebert in December
2010. (Tr. 99:18-101:2 (Martin); DX27). Acred responded both times by saying that he had
Martin’s number and Hebert told Martin that he would let the superintendents know of his
inquiry. (Id.) However, Hebert also testified that following the Boone Clinton project, he would
not have recommended Martin to be a foreman. Hebert explained, “I had a soft spot for Kenny .
. . but business is business and, you know, certain people possess certain skill sets and other folks
don’t.” (Tr. 1343:21-1344:1 (Hebert)).
After Martin’s layoff, FPN had to fix six leaks in the Boone Clinton sprinkler system.
(DX27). Hebert testified that Martin failed to notify FPN of any problems with the piping until
after he had been laid off. (Tr. 1322:7-15 (Hebert)). However, it is reasonable to imagine based
on the liability releases FPN negotiated before taking the job that FPN at least anticipated
potential issues with the Boone Clinton system, regardless of what Martin did or did not tell
them at that time.
18

Following his layoff, Martin enrolled in school at the Elim Outreach Center and took
classes to become a certified nurse assistant, certified phlebotomist and dialysis technician. (Tr.
42:12-23; 103:5-11, 205:25; 206:1-15 (Martin)). In 2010 and 2011, Martin attended school for
nine to twelve months and completed a one-month internship. (Tr. 206:8-15 (Martin)). Martin
testified that he was still seeking employment as a sprinkler fitter at this time but could not recall
whether he actually contacted any sprinkler fitter companies regarding job opportunities during
the period he was in school. (Tr. 206:16-20 (Martin)). After completing school, Martin worked
as a patient care tech for DaVita Dialysis Center from July 2011 until being discharged in August
2012.

(Tr. 103:22-104:35, 206:21-207:4 (Martin)).

Martin applied for jobs with several

sprinkler fitter contractors while working for DaVita and eventually found employment. (Tr.
106:12-18, 111:15-25 (Martin)).
Martin worked from 2005 to 2009 under Sullivan and then Acred, during which time he
was promoted and never laid off. The industry began to slow in late 2008 and early 2009 and
FPN had fewer jobs. The last job Martin worked in 2009 was the DePaul O’Malley Lewis
project. When there was a lull on that job, Acred transferred Martin to other jobs to keep him
busy.

But when the O’Malley Lewis project ended, FPN had no other jobs that needed

additional fitters. FPN told Martin they would call him if work became available but it never
did. Within a few months, Martin found work with UFP and was not available for rehire by
FPN. In 2010, UFP went out of business and FPN took over some of their jobs including the
Boone County job. FPN kept Martin on as foreman of the Boone County job for continuity’s
sake. FPN knew the Boone County job had problems before taking it over and negotiated
releases of liability for any issues caused by UFP’s work. With Martin’s help, FPN submitted a
schedule and labor cost estimate to finish the job. Martin completed the job on time but far
19

exceeded the labor hours budget, costing FPN money. After Boone County, FPN laid off Martin
and did not transfer him to another job. Martin contacted FPN a few times to inquire about work
but was not rehired. Soon after being laid off, Martin enrolled in school and never called FPN
again about work opportunities.
B.

Plaintiff Aaron Truesdell

Plaintiff Aaron Truesdell, an African American sprinkler fitter, worked for FPN or its
predecessor from 2006 to 2009 and again for a few months in 2010. Sullivan first hired
Truesdell to work as a journeyman fitter for F.E. Moran Fire Protection in spring of 2006 and
promoted Truesdell to foreman in summer of 2006. (Tr. 322:16-19, 323:6-7, 20-23 (Truesdell);
Tr. 868:11-15 (Sullivan)). Sullivan hired Truesdell because he had heard Truesdell was a “very
good fitter” and “could run work.” (Tr. 868:7-10 (Sullivan)). Sullivan considered Truesdell to
be a responsible, trustworthy worker with “very good” communication skills that performed well
on the jobs to which he was assigned.

(Tr. 868:17-869:4 (Sullivan)).

Truesdell likewise

described Sullivan as an “excellent communicator” and a “trusted” and “fair” supervisor with
whom he had a “very good” working relationship. (Tr. 326:20-327:19 (Truesdell)).
During his tenure as superintendent, Sullivan transferred Truesdell from job to job and
never laid him off. (Tr. 869:5-9 (Sullivan)). When no foreman positions were available,
Sullivan assigned Truesdell to jobs to assist on jobs as a journeyman. (Tr. 328:20-329:10
(Truesdell)). When Acred became superintendent in 2009, he also transferred Truesdell to
various jobs both as foreman and as journeyman and when Truesdell worked as journeyman, he
maintained his foreman wage rate. (Tr. 328:20-329:10, 398:25-399:6, 450:8-16 (Truesdell)).
Between 2006 and 2009, Truesdell worked as a foreman on projects for DePaul and the
Chicago Mercantile Exchange (CME). On the DePaul O’Malley Lewis project, Martin was head
20

foreman but Truesdell ran the night crew as foreman two or three times when they worked
through the day and night. (Tr. 329:11-22 (Truesdell)).

As foreman on the CME project, an

add/relocate job on two floors of the building, Truesdell oversaw six to ten fitters at any time.
(Tr. 329:23-330:11 (Truesdell)).

Both projects were profitable for FPN.

(Tr. 330:12-23

(Truesdell); Tr. 1403:10-24 (Metcalfe); Hebert (individual) Dep. Des. 33:2-19)). Neither had
any minority hiring requirements. (Tr. 897:18-20 (Sullivan); Tr. 1220:4-5 (Barcik)). During a
foreman meeting in 2009, Metcalfe singled Truesdell out for good performance, praising him for
his “excellent” work on the CME job and noting that the job was “very profitable for the
company.” (Tr. 330:12-23 (Truesdell); Tr. 1403:10-24 (Metcalfe)).
The Chase Bank project in downtown Chicago was Truesdell’s last job before being laid
off in 2009. There were no minority hiring requirements for the job. In July 2009, Acred
transferred Truesdell to the Chase Bank job to replace a white fitter, Randy Iverson, as foreman.
(Tr. 334:10-24, 410:15-411:1 (Truesdell); JX34). Acred testified that he would not remove the
foreman on a job as it was winding down unless the foreman was not performing. (Tr. 1047:8-11
(Acred)).
Truesdell remained on the job until it was complete at the end of July. (Tr. 334:14-18,
335:16-17 (Truesdell)). Upon completing the job, Truesdell went on a 10-day vacation to
California which he had cleared with his supervisors. (Tr. 335:16-24, 336:19-21 (Truesdell)).
When he returned, Waters informed him that he was being laid off.

(Tr. 334:24-335:12

(Truesdell)).

(Tr. 336:13-337:19

Truesdell felt “blindsided and hurt” and “stunned.”

(Truesdell)). Truesdell admitted that, to his knowledge, there were no job opportunities at FPN
for fitters the time of his layoff in 2009. (Tr. 337:20-23 (Truesdell)).

21

After his 2009 layoff, FPN tried to rehire Truesdell twice but he declined. Truesdell
began working as a sprinkler fitter at UFP around late October or November 2009. (Tr. 340:1522 (Truesdell)). In December 2009, Waters called Truesdell and asked if he would be interested
in a job opportunity at FPN. (Tr. 344:12-345:2 (Truesdell)). Truesdell told Waters he was
working for UPN and appreciated the offer but declined. (Tr. 344:23-345:2 (Truesdell)). In
February 2010, Barcik called Truesdell again about returning to work for FPN. (Tr. 345:3-18
(Truesdell); Tr. 1138:15-21 (Barcik)). Barcik told Truesdell that he could take a couple of weeks
to decide. (Tr. 345:8-18 (Truesdell)). Barcik testified that it was unusual for him to reach out to
fitters about work and that he could not remember any other instance when he did so. (Tr.
1139:1-9 (Barcik)). Truesdell did not immediately accept the job. He explained that the owner
of UPN was a minority and he wanted to give him a “fair shake” because, being a minority
himself, he would have taken pride in helping to make the business a success. (Tr. 345:19-25
(Truesdell)).

FPN’s attempts to rehire Truesdell were not related to any minority hiring

requirement. (Tr. 1222:19-22 (Barcik)). Acred testified that Truesdell had an “open invitation”
to return to FPN. (Tr. 1053:25-1054:7 (Acred)).
Truesdell eventually contacted Barcik to accept the offer in April 2010, in part out of
concern for UPN’s financial condition. ((Tr. 346:10-25; 347:1-7, 415:3-21 (Truesdell)). FPN
rehired Truesdell as a journeyman within a week or two and assigned him to the Lee Pasture job,
a new construction Chicago Public School on the 4700 block of West Marquette Road. (Tr.
347:8-18, 396:11-13, 415:22-24 (Truesdell)). Although several FPN witnesses testified that the
Lee Pasture job had no minority hiring requirement, the subcontract and other documents suggest
that it did. (PX146; PX162; PX163.) Acred was the superintendent on the Lee Pasture job and
promoted Truesdell to foreman after the previous foreman, a white fitter named Bill Cartright,
22

was removed for poor performance.

(Tr. 412:18-413:25 (Truesdell); Tr. 935:4-6, 1054:8-

1055:11 (Acred); Tr. 1221:12-17, 1222:8-15 (Barcik)). At that point, the Lee Pasture job was
pretty far along. (Tr. 1222:13-15 (Barcik)).
After the Lee Pasture job, Truesdell worked at the Matteson Community Center, a
recreation center in Matteson, Illinois, near where Truesdell lived in Park Forest and, therefore,
was convenient for Truesdell to get to work.

(Tr. 350:6-20, 379:25-380:5, 455:21-456:1

(Truesdell)). The Matteson job had a minority hiring requirement. (PX315; FPTO, Ex. 1 SOUF
¶ 46). Following the Matteson job and for the majority of the summer of 2010, Acred assigned
Truesdell to work as foreman on a Walmart job in Chicago’s Austin neighborhood. (FPTO, Ex.
1 SOUF ¶ 43; PX139; PX286).

The Walmart subcontract did not include a minority

requirement; however, certain communications suggest FPN nonetheless committed to provide
50% minority labor. (Tr. 1331:22-1332:20 (Hebert)); Tr. 1058:22-24 (Acred); Tr. 1819:7-17,
1821:12-25 (Waters); JX26; PX139; PX155.)
The Walmart job involved a buildout of an existing store and proceeded in three phases,
the last of which was the largest and made up the bulk of the work. (Tr. 353:7-18, 355:8-9
(Truesdell)). As foreman, Truesdell attended weekly foreman meetings in which the general
contractor discussed the schedule and expected pace for the job. (Tr. 325:21-326:2, 357:1-10,
358:13-16 (Truesdell)). Truesdell worked to complete the Walmart job on schedule. (Tr.
358:17-22 (Truesdell)). He completed the first phase on his own and requested assistance on the
second phase; Acred provided an apprentice. (Tr. 355:15-355:6 (Truesdell)). Truesdell took his
regular vacation in August and FPN fitter Ignacio Torres filled in while he was gone. (Tr. 356:413 (Truesdell)). When he returned, Truesdell requested additional help for the third phase.
Given the scope of the work and the general contractor’s schedule, he believed he needed at least
23

two journeymen to assist him and the apprentice. (Tr. 356:13-358:12 (Truesdell)). Acred agreed
that Torres could remain on the job but assigned no one else. (Tr. 358:19-22 (Truesdell)).
Toward the end of the third phase, Acred approached Truesdell for the first time about
number of hours worked on the job and expressed concern that the hours were running out. (Tr.
358:23-360:13, 417:8-25 (Truesdell)). Neither Acred nor anyone else at FPN ever complained
that Truesdell did unauthorized work outside the scope of the job.

(Tr. 360:21-361:2

(Truesdell)). The total hours worked on the Walmart job nearly doubled the budgeted hours.
(Tr. 1062:3-20 (Acred)). Acred blamed the hours issues on the salesperson for underbidding the
job and on the foreman for failing to track hours and be efficient. (Tr. 1062:3-20, 1107:6-21
(Acred)); Tr. 1820:22-1821:7 (Waters)). Acred laid off Truesdell on September 29, 2010, the
day he was scheduled to finish the Walmart job, for lack of work. (Tr. 352:23-25; 367:16- 25;
368:11-15 (Truesdell); Tr. 1064:10-14 (Acred); JX19).

Truesdell’s Notice of Termination

indicates that he was eligible for rehire and that FPN had not needed to hire anyone to replace
him. (JX19; Tr. 457:6-25, 458:1-3 (Truesdell)). FPN had no jobs to transfer him to at the time
of his layoff. (Tr. 1814:9-12 (Waters)). FPN also fired the sales representative from the
Walmart job.
FPN held an After-Action meeting in October 27, 2010 to discuss and create a report
documenting various failures on the Walmart job. (Tr. 937:14-21, 1060:21-25; 1061:1 (Acred);
Tr. 1758:23-25, 1759:1-2, 1814:3-8, 1823:9-18 (Waters); JX29). FPN only conducts AfterAction meetings for projects that go “really bad.” (Tr. 1060:16-1061:20 (Acred)). The AfterAction Report listed the issues that contributed to the “failure” of the Walmart project and
included four main categories: (1) “Turnover,” (2) “No designer assigned to project,” (3)
“Wrong foreman running project,” and (4) “lack of leadership.” (JX29). Under the third
24

category, the report states that there was “poor communication” and that the foreman “didn’t
care about the hours” and “continual [sic] did work outside of scope, without authorization.”
(JX29; Tr. 1061;16-1062:2 (Acred); Tr. 1823:9-1824:1 (Waters)). The Report also blamed the
salesperson’ inexperience and failure to properly communicate the scope of the project when
turning it over to the field management team as well as the lack of phasing schedule and
designer. (JX29; Tr. 937:22-938:10 (Acred)). Metcalfe testified also that Walmart was one of
the most difficult clients FPN ever worked with.

(Tr. 1525:25-1526:2, 1526:20-1528:2

(Metcalfe)).
Truesdell testified that he was still interested and available for work following his 2010
layoff. However, Truesdell also admitted that he never contacted a supervisor or anyone else at
FPN for work until 2012 when he returned a phone call from Waters. (Tr. 372:6-22, 420:16421:4; 453:17- 454:6 (Truesdell)). Truesdell never had a service truck during his employment
with FPN. (Tr. 1805:4-6 (Waters)).
Truesdell worked from 2006 to 2009 under Sullivan and then Acred, during which time
he was promoted and never laid off. Both Sullivan and Acred transferred Truesdell to work as a
journeyman on jobs when no foreman jobs were available and allowed him to maintain foreman
pay. The last job he worked in 2009 was at Chase Bank. When the job ended, FPN could not
have transferred him because Truesdell immediately went on a ten-day vacation.

When

Truesdell returned, there were no jobs available and he was laid off. Following his 2009 layoff,
Truesdell did not reach out to FPN about rehire; in fact, between December 2009 and April 2010,
Truesdell declined FPN’s offers to return.

Truesdell eventually accepted the offers for rehire.

Upon return, he worked as foreman on the Walmart project which FPN considered a “failure.”
Truesdell was laid off and not transferred after the Walmart ended. Following his 2010 layoff,
25

Truesdell never contacted FPN for work other than returning Waters’ phone call in 2012.
Truesdell never made any internal complaints of hearing race-based comments or of unfair or
unequal treatment. He also testified that other than his 2009 layoff, Truesdell never felt like he
was being treated unfairly by anyone including Scott Acred. (Tr. 392:19-22, 404:16-18, 411:3-5
(Truesdell)).
C.

Plaintiff Johnny Tejada

Plaintiff Johnny Tejada, a fitter of Panamanian ancestry who identifies as African
American, worked for FPN for a few months in 2010. Before working for FPN, Tejada worked
for two years for UFP and was not laid off at any point during that time. (Tr. 758:22-759:4
(Tejada)). UFP promoted Tejada from journeyman to foreman and assigned him as the original
foreman to the Adam Clayton Powell School project. (Tr. 762:4-12, 763:6-7 (Tejada)). Tejada
waived the higher foreman’s wage rate and accepted the journeyman pay rate on the Powell
School job because UFP was having financial issues at the time; he was not aware of any other
foreman that did the same. (Tr. 764:23-765:9, 808:17-18 (Tejada)). UFP went out of business
before the Powell School project was completed. (Tr. 766:1-9 Tejada)).
FPN took over the Powell School project from UFP near the end of June 2010. (JX24;
PX215). The job stood stagnant for a few weeks and then started up again in early July. (Tr.
766:1-9 (Tejada)). When FPN took over, Sollitt, the general contractor on the job, recommended
that Acred reach out to Tejada about continuing to work on the project for FPN. (Tr. 1142:21-25
(Barcik)). Acred hired Tejada on June 28, 2010 but assigned Eric Woolwine to take over as
foreman on the Powell School job. (Tr. 1065:21-25 (Acred); Tr. 772:17-773:2 (Tejada); Tr.
1337:8-1339:6 (Hebert); JX25.) After being hired, Tejada worked for a short period on the

26

Boone Clinton project under Martin, who was foreman on the job, until the Powell School job
started again. (Tr. 814:2-13; 815:2-816:2 (Tejada)).
Tejada testified that, when he was hired, he knew FPN planned to assign another fitter to
the Powell School job but assumed he would continue as foreman. (Tr. 769:21-770:19, 816:24817 (Tejada); PX71). He testified also that he was not aware of any minority hiring goals or
requirements on the Powell School job and did not feel that FPN was obligated to hire him based
on his race. (Tr. 817:6-15, 825:11-13 (Tejada)). Indeed, Hebert negotiated any EEO minority
goals and requirements out of the agreement with Sollitt when FPN took over the project from
UFP. (Tr. 1333:15-21 (Hebert); PX0215). Hebert told Sollitt that FPN would “try to assist”
with minority requirements but maintained that FPN would not assume liability or accept any
penalties if they were not met. (JX24). Hebert negotiated other exclusions as well, including
any warranty for work installed by UFP prior to FPN taking over. (PX215; Tr. 1332:22-1335:9
(Hebert)).
Tejada and Woolwine worked together on the Powell School job for two to three months.
(Tr. 774:12-14 (Tejada)). There were never any complaints about Tejada’s work on the job but
Woolwine was the more productive of the two. (Tr. 774:18-20 (Tejada); Tr. 942:18-943:5
(Acred)). Tejada installed around 15 heads per day with Woolwine laying out the pipe to assist.
(Tr. 1225:9-22 (Barcik)). Meanwhile, Woolwine, who was known for his high productivity rate,
installed more than 23 heads per day on his own. (Tr. 1225:20-25 (Barcik))
The Powell School project began winding down the week of September 17, 2010. (Tr.
775:2-5 (Tejada)). That week, Acred told Tejada that he would not be laid off but would be
placed on a “furlough” for about a week before going to a new project. (Tr. 775:12-17 (Tejada)).
Woolwine stayed on the job for several weeks more to complete the testing, trimming and other
27

aesthetic work, as typically required of the foreman. (Tr. 828:2-13 (Tejada)). Tejada did not
hear anything from FPN for two weeks and months later received notice of his termination. (Tr.
776:17-777:24 (Tejada); JX0039). The notice, dated March 24, 2011, listed his last day worked
as September 17, 2010, indicated the reason for his layoff was “lack of work” and stated that he
was “eligible for rehire.” (Id.)
Tejada disputes that there was a lack of work in September 2010 when he was laid off.
He testified that before he was laid off, Acred told him about a new Walmart construction
starting up. (Tr. 828:19-829:6. (Tejada)). Acred could not recall any openings at the time
Tejada was laid off and testified that there was no new Walmart project starting at that time.
(Tr. 1067:7-8 (Acred)).
Tejada also points to the Ogden Elementary School job, a new construction Chicago
Public School, which was starting up in the fall of 2010 when he was laid off. (Tr. 943:25-944:9
(Acred); 1829:17-1840:6 (Waters); JX34). On July 28, 2010, Barcik emailed the FPN safety
coordinator to arrange flag training—safety training for flagging vehicles and deliveries onto a
job site—and drug testing for Tejada and three other fitters Kevin Sink (Asian), Ignacio Torres
(Hispanic) and Bill Massey (White).

(PX208).

Barcik explained that flag training is not

necessarily associated with a certain job because FPN trains fitters in groups for efficiency’s sake
and typically when work for the fitter is slow. (Tr. 1250:5-18 (Barcik)). Barcik indicated in the
email, however, that the drug testing was specifically required by Turner, the general contractor
on the Ogden School job. (PX208; Tr. 1145:18-20 (Barcik)) The Ogden School job had a
minority hiring requirement. (PX251; Tr. 1151:2-1152:19 (Barcik)). Ultimately, Acred assigned
Massey as foreman on the Ogden School job and FPN subcontracted the labor for the job to
Profast, a minority-owned business, to meet the minority hiring requirement. (Tr. 1150:14-20,
28

1151:22-25 (Barcik); 1830:7-14, 1961:4-5 (Waters); PX117). Neither Tejada, Sink nor Torres
worked any hours on the Ogden School job; only white fitters recorded any hours for FPN on the
job. (JX34; Tr. 1951:14-16 (Waters)).
Tejada never had a service truck or other company vehicle during his employment with
FPN. (Tr. 1805:4-8 (Waters); Tr. 805:20-22 (Tejada)). Tejada did not have a valid driver’s
license when FPN hired him and never obtained one while employed with FPN or after being
laid off. (Tr.788:10-24; 790:10-12 (Tejada)). Tejada did not recall whether or not Acred knew
he did not have a driver’s license. (Tr. 790:5-9 (Tejada)). He did testify, however, that his
inability to maintain a drivers’ license hindered his ability to obtain work after his layoff from
FPN. (Tr. 788:25-789:13 (Tejada)).
Tejada changed his phone number at least twice after his layoff if September 2010 and
did not recall ever providing his updated contact information to Acred or anyone else at FPN in
case they wanted to reach out to him about job opportunities. (Tr. 809:14-23, 810:1-5, 14-23
(Tejada)). Tejada had Acred’s business card but did not attempt to contact him or anyone at FPN
until April 2011, months after his September 2010 layoff. (Tr. 823:16-22 (Tejada)). When he
did call Acred, it was not to inquire about work but to leave a “paper trail” showing that he had
reached out. (Tr. 849: 1-8 (Truesdell)). On April 11, 2011, Tejada received an email sent to a
group of individuals including Martin and Truesdell encouraging him to call FPN, let them know
he was an African American living in Chicago and looking for work and document the time and
person with whom he spoke. (DX132). The email instructed, “[T]ry to do this today. This helps
our paper trail.” (Id.) Tejada called Acred after receiving this email. (Tr. 849:1-8 (Tejada)). He
did not talk to Acred directly or leave a message. (Tr. 834:12-22, 849:9-10 (Tejada)). He called

29

the number on Acred’s business card but could not recall whether it was his cellphone or office
number. (Tr. 849:11-23 (Tejada)).
At the time Tejada called FPN, he lived three hours away from Chicago and was not
eligible for hire by FPN. Tejada moved to Battle Creek, Michigan sometime in 2011. (Tr.
751:4-7, 788:10-14 (Tejada)). While there, he attempted to apply for a fitter job but was denied
because he was not in good standing with the Local 281 union. (Tr. 834:24-835:10 (Tejada)).
He testified that he stopped making quarterly dues to the union after his layoff in 2010 and that
the last union card he recalls having was for 2010. (Tr. 790:17-791:22 (Tejada)). Per union
rules, a member that fails to pay dues is not in good standing and not eligible to work as a Local
281 member and, therefore, not eligible for hire by FPN. (Tr. 792:8-25 (Tejada)).
In summary, Tejada failed to make any credible effort to contact FPN for rehire after his
layoff in September 2010. FPN could not have reached Tejada even it tried because he had
changed his number without notifying anyone at the company. Moreover, as of 2011, Tejada
lived more than three hours away from Chicago and was not eligible to work for FPN if a job
were available. Finally, Tejada testified at trial that Acred, the only superintendent he worked
for at FPN, never treated him unfairly. (Tr. 832:20-22 (Tejada)). Tejada never made any internal
complaints of unfair or unequal treatment at FPN. (Tr. 825:14-16 (Tejada)).

VI.

Other FPN Employees
A.

Erik Massey

Erik Massey is a white fitter who worked as a foreman for FPN consistently from 2008
through the present. (PX448B; PX450C). Massey had the same skills as Martin and Truesdell
and received the same or worse ratings than Martin and Truesdell on the various charts FPN
created in 2008 and 2009: weighted rank of 93 and value rank of 2 in the February 2008
30

“Manpower skills list,” a B/C+ in the September 2008 “Field Rating System” chart, a B- with
“trending upward” status in the January 2009 “Field Rating” chart, and a B in the September
2009 “Field Rating” chart. (Tr. 951:23-952:8 (Acred); JX22; JX21; DX10; PX133).2
Massey worked with Truesdell on the Matteson Community Center job but did not work
on any other jobs with any of the Plaintiffs. (JX34). FPN assigned Massey to work on the
Kellogg Cancer Center the week ending August 28, 2009, about one month after Truesdell’s
2009 layoff; the 2550 N. Lakeview job the week ending August 27, 2010, a few weeks after
Martin’s 2010 lay off; and the DePaul Loop FP job the week ending October 15, 2010, about two
weeks after Truesdell’s 2010 lay off. (Id.).
FPN gave Massey a service truck but Sullivan subsequently took it away after it was
broken into because Massey failed to properly lock the truck in violation of company policy.
(Tr. 889:24-890:12 (Sullivan)). Massey also had performance issues on some jobs, including
going over the budgeted hours on a Concordia University job and a flood on the 2550 N.
Lakeview job. (Tr. 945:7-9, 958:4-12 (Acred)). Barcik testified that another contractor on the
2550 N. Lakeview job was responsible for the flood. (Tr. 1235:16-1238:1 (Acred)).
B.

William Sulich

William Sulich is a white fitter who worked as a foreman for FPN consistently from 2008
to 2015. (PX448B; PX450C). Sulich had the same skills as Martin and Truesdell and received
similar or better ratings than Martin and Truesdell on the various charts FPN created in 2008 and
2009: weighted rank of 95 and value rank of 2 in the February 2008 “Manpower skills list,” an A

2

Martin received the following ratings on the same charts: weighted rank of 81 and value rank of 3, B, Bwith “maintaining” status, and B. Truesdell received the following ratings: weighted rank of 84 and value
rank of 3, B+, B+ with “maintaining,” and B+. (JX22; JX21; DX10; PX133.)

31

in the September 2008 “Field Rating System” chart, an A with “trending upward” status in the
January 2009 “Field Rating” chart, and an A in the September 2009 “Field Rating” chart. (Tr.
851:12-22 (Acred); JX22; JX21; DX10; PX133). Procter testified that in 2008 and 2009, Sulich
was a “terrible” fitter and had performance problems on jobs, for example, making mistakes due
to ignorance of the sprinkler fitter code including on one site where he installed sprinkler heads
at the wrong height and the finished wall had to be broken in order to reinstall the heads. (Tr.
1652:6-1654:23 (Procter)). Barcik testified that in 2009 Sulich was young and inexperienced but
improved over time. (Tr. 1157:22-1161:14 (Barcik)).
Sulich worked with Truesdell on the Lee Pasture job but did not work on any other jobs
with any of the Plaintiffs. (JX34). FPN assigned Sulich to work on the DePaul Media Center the
week ending August 14, 2009, a few weeks after Truesdell’s 2009 layoff; the River North Self
and the Advocate Trinity jobs each for one day in the week ending August 21, 2009, a few weeks
after Truesdell’s 2009 lay off; and two different DePaul jobs the week ending September 4,
2009, about one month after Truesdell’s 2009 layoff. (Id.).
C.

Dan Hughes

Dan Hughes is a white fitter who worked as a foreman for FPN consistently from 2008 to
the present. (PX448B; PX450C). Hughes had the same skills as Martin and Truesdell and
received similar or better ratings than Martin and Truesdell on the various charts FPN created in
2008 and 2009: an A- in the September 2008 “Field Rating System” chart, an B with “trending
upward” status in the January 2009 “Field Rating” chart, and an A- in the September 2009 “Field
Rating” chart. (Tr. 956:11-957:23, 1078:21-1079:2 (Acred); JX22; JX21; DX10; PX133).
Hughes worked on the Lee Pasture and Matteson Community Center jobs and worked
under Truesdell on the CME job; he also worked on the Boone Clinton job with Martin. (JX34).
32

FPN assigned Hughes to work on the Lee Pasture job the week ending September 4, 2009, about
a month after Truesdell’s 2009 layoff; the Ogden Elementary job the week ending August 13,
2010, the week of Martin’s 2010 layoff; the Watersaver Faucet job the week ending August 20,
2010, one week after Martin’s 2010 layoff; and the Westeye Midwest job the week ending
October 15, 2010, about two weeks after Truesdell’s 2010 layoff. (Id.). Hughes had some
performance issues, for example, a flood occurred on a 2009 Allstate job for which Hughes was
the foreman. (Tr. 956:11-957:23, 1078:21-1079:2 (Acred)). Acred testified that, as Hughes
explained to him, the building engineer and not Hughes caused the flood by failing to drain the
proper system. (Id.)
D.

Randy Iverson

Ryan Iverson is a white fitter who worked as a foreman for FPN consistently from 2008
to February 2014. (PX448B; PX450C). Iverson had the same skills as Martin and Truesdell and
is not listed on the various ranking charts FPN created in 2008 and 2009. (Tr. 949:11-19
(Acred); JX22; JX21; DX10; PX133).
Iverson was the foreman on the Chase Bank job before Truesdell; he also worked on the
Matteson Community job but did not work on any other of the same jobs as Truesdell or Martin.
(JX34). FPN assigned Iverson to work on the Bestway job the week ending September 11, 2009,
the week of Martin’s 2009 layoff and the 2nd floor N&S job the week ending August 27, 2010,
two weeks after Martin’s 2010 layoff. Iverson was removed from several jobs as foreman, for
example, from the Advocate Trinity job by request of the FPN salesperson after he drilled a hole
in the wall and hit a conduit and the Skokie Hospital job by request of the client after setting off
a fire alarm while the hospital was occupied.

33

(Tr. 926:16-927:7, 950:1-:951:11 (Acred)).

Iverson was ultimately laid off due to attendance and tardiness issues. (Tr. 950:1-15 (Acred); Tr.
Tx. 1407:10-14 (Metcalfe)).
E.

Eric Woolwine

Eric Woolwine is a white fitter who worked as a foreman for FPN consistently from 2010
to October 2013. (PX448B; PX450C). Woolwine worked as foreman over Tejada on the Powell
School job; he also worked on the Matteson Community Center job. (JX34). FPN hired
Woolwine based on his reputation in the fitter industry. (Tr. 1782:16-1783:1-9, 1826:22-1828:3
(Waters)). He was known as “Eric Awesome” and while at FPN maintained a high productivity
rate and high quality of work. (Tr. 1066:1-25 (Acred), 1224:22-1225:8 (Barcik)).
F.

Other African American Fitters

FPN has hired or rehired two African Americans besides Plaintiffs since 2008. FPN
hired African American fitter James Pikes in January 2010; he was laid off in July 2010. (JX33).
In July 2011, FPN rehired Anthony House, an African American fitter it had laid off in June
2008. (Id.).
VI.

Race-Based Statements
Metcalfe testified that he had heard fitters use the word “nigger” on job sites but could

not recall any specific examples. (Tr. 1449:13-15 (Metcalfe)). He recalled one instance in
which he learned that an employee at headquarters had used the word “nigger” in an altercation
with an African American employee.

(Tr. 1449:20-1450:1, 1504:9-1505:2 (Metcalfe)).

Metcalfe suspended the individual, wrote a report and ultimately terminated him for violating
company policy. (Tr. 1505:9-16 (Metcalfe)).
Acred admitted that he used the phrase “nigger-rigged” once 15 years ago in 2002 or
2003 while restoring a car in his garage and that only his personal friend was present at the time.
34

(Tr. 958:13-959:13, 1049:9-21, 1119:23-1121:7 (Acred)). Acred acknowledged the term could
be disparaging to African Americans. (Tr. 959:14-17 (Acred)).

Acred never used the term

again including at work or in front of other FPN employees. (Tr. 1049:22-1050:2 (Acred)).
Acred laid off his own brother in 2005, did not rehire him until 2012 and subsequently laid him
off again. (Tr. 1100:24-1102:11, 1121:21-1122:4 (Acred); JX33). Acred laid off his brother due
to lack of work and because there were better fitters to take the available jobs. (Tr. 1101:11-18
(Acred)). Acred had to support his brother for three years as a result.

(Tr. 1101:23-1102:5

(Acred)).
Plaintiffs never heard Acred or anyone else make a race-based statement in the
workplace.

(Tr. 145:9-20 (Martin); Tr. 404:19-405:22 (Truesdell); Tr. 832:14-16, 23-25

(Tejada)). Sullivan never heard any race-based comments while at work, including from Acred,
Waters, Barcik or Metcalfe. (Tr. 892:1-10, 16-21 (Sullivan)).
Procter testified for the first time at trial that he once heard Waters state he “was tired of
lazy niggers.” (Tr. 1639:11-14, 1641:7-14 (Procter)). Procter—whom Waters had demoted
while at FPN—could not recall exactly when between July 2008 and January 2009 he heard
Waters make this statement but testified that Sullivan and Acred had been present. (Tr. 1640:151641:3, 1677:23-1678:3 (Procter)). Both Sullivan and Acred testified they had never heard
Waters say such a thing. (Tr. 2009:25-2010:2, 2017:23-2018:3, 2018:13-17 (Sullivan); 2014:3-7
(Acred)).
VIII. Racially Offensive Emails
Plaintiffs presented various racially offensive emails sent and/or received by FPN
personnel between 2009 and 2012. The emails violated FPN’s anti-harassment policy which
prohibits “ethnic slurs or racial epithets, name-calling, jokes . . . and other conduct based on a
35

person’s . . . race” and its computer policy which similarly prohibits emails “consisting of ethnic
slurs, racial epithets, or anything that may be construed as illegally harassing or offensive to
others based on an individual’s race . . . .” (JX38). The emails primarily involved either
superintendent Acred or FPN President Metcalfe and Armon executives. None of the emails
presented mentioned or made reference to the individual Plaintiffs.
A.

Emails To/From Acred

Superintendent Acred received and sometimes forwarded racially offensive emails on his
work email address. On November 11, 2009, Acred received an email from Corey Misch, a
former FPN foreman, which stated:
Governments, business and colleges have engaged in discrimination against
white folks – with affirmative action, contract set-asides and quotas -- to
advance black applicants over white applicants. . . .
Is white America really responsible for the fact that the crime and
incarceration rates for African-Americans are seven times those of white
America? Is it really white America’s fault that illegitimacy in the AfricanAmerican community has hit 70 percent and the black dropout rate from
high schools in some cities has reached 50 percent? . . .
This needs to be passed around because, this is a message everyone needs to
hear!!! OK………will you pass it on? YES. I did but will you? Because I’m
for a better America.
(PX230 (emphasis in original)). On November 13, 2009, Acred forwarded the email to Waters
and Barcik, who were on the field management team at that time, with no text in the body of the
email. (Id.) At trial, Acred did not recall the email. (Tr. 997:13-15 (Acred)). He testified that
the email “could be offensive” and that he did not agree with its message but admitted that he did
not express any disagreement when he forwarded it to Waters and Barcik. (Tr. 999:13-20,
1002:7-1003:25 (Acred)). Acred did not discipline Misch, his subordinate, for sending the email
or instruct him not to send emails of this kind. (Tr. 1006:5-10 (Acred)).
36

On August 21, 2009, Acred received an email from Timothy Carroll 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 things like the
United Negro College Fund, Jet Magazine, Black Entertainment Television, and
Miss Black America. . . .
If you agree, pass this on, if not delete.
(PX367). On August 22, 2009, Acred forwarded the email to Waters and Barcik. (PX367). At
trial, Acred testified that he did not recall the email and that he does “not necessarily” agree with
its message. (Tr. 1009:14-24 (Acred)).
On January 15, 2010, Acred received another email from Timothy Carroll which stated,
[S]omewhere between 1968 and bill clinton commonsence was lost and or
replaced with entitlement the rise of the minorities has led to the decline of our
basic principles threw which kept america strong in every way.
(PX366). Acred testified that he did not agree with the email’s message. (Tr. 1012:15-17
(Acred)). Acred never responded to Carroll or told him the emails were inappropriate. (Tr.
1012:18-21 (Acred)).
On September 20, 2009, Acred received via email a joke from a friend with the image of
a Google search box with the text “white people stole my car” inside and the response line below
“Did you mean: black people stole my car?” (PX383 (emphasis in original)). Acred did not
respond or tell his friend the joke was offensive or discuss the email with his friend in any way.
(Tr. 1014:8-14 (Acred)).
In February 2012, a FPN sales representative emailed Acred and an FPN technician
concerning a contractor’s request to report hours worked by minority fitters on a project for an
upcoming EEO audit. (PX173). The sales representative stated, “We knew about this all along!
We just needed to put a black face on Chris Pell,” a white fitter. (Id.) Acred did not respond to
37

the email. (Id.) At trial, Acred testified that he did not recall receiving the email and was not
sure what “black face” meant. (Tr. 1020:21-1021:5 (Acred)). Acred did not report the email to
anyone at FPN. (Tr. 1021:6-7 (Acred)).
B.

Emails To/From Metcalfe and Armon Executives

FPN President Metcalfe sent and received numerous racially offensive emails to and from
Brian Moran, president of Armon; Richard Lightfine, then-manager of business development for
Armon; and Richard Carlini, former president of F.E. Moran Mechanical Services, a subsidiary
of Armon. (Tr. 1398:25-1399:11, 1399:22-1400:6 (Metcalfe)). Metcalfe never reported Moran,
Lightfine or Carlini for circulating inappropriate and offensive emails. (Tr. 1531:9-1532:5
(Metcalfe)). Metcalfe could not have taken any disciplinary action against Moran, Lightfine or
Carlini: Metcalfe reported to Moran and neither Lightfine nor Carlini were ever employed by
FPN. (Tr. 1399:22-1400:6, 1487:2-5, 1508:16-24 (Metcalfe)). Moran, Lightfine and Carlini
never made any employment decisions about Plaintiffs or any other fitters. (Tr. 1490:3-5,
1493:3-8, 1497:7-9 (Metcalfe); Tr. 896:1-22 (Sullivan); Tr. 1811:10-20 (Waters); Tr. 1033:1-3
(Acred); Tr. 1319:10-15 (Hebert)).
On October 27, 2008, Moran forwarded an email to Metcalfe, Lightfine and Carlini with
the subject line “Obama, Your Pastor, Same-Sex & Child Sacrifice” that related to Barack
Obama’s race for president. (PX236).

Metcalfe responded to Moran, Lightfine and Carlini

complaining about a forthcoming book by William Ayers “that blames white European descent
people for all of the woes in American” . . . “basically calling for open season” on white people.
(PX236; Tr. 1452:10-17, 1454:14-1456:1 (Metcalfe)).
On February 2, 2009, Lightfine forwarded an email to Metcalfe and Carlini which stated,
“EVERYONE JUST RELAX!! When was the last time you saw an African-American keep a
38

job for four years?” (PX227). Metcalfe did not respond to the email; he testified that he did not
recall the email and did not report Lightfine for sending the email. (PX227; Tr. 1459:10-16
(Metcalfe)).
On March 9, 2009, Lightfine forwarded an email to Metcalfe and Carlini with the subject
line “White Pride! VERY TRUE.” (PX237). The forwarded email concluded “BE PROUD TO
BE WHITE! It’s not a crime YET . . . but getting very close! It is estimated that ONLY 5%
of those reaching this point in this e-mail, will pass it on.” (Id. (emphasis in original)).
Metcalfe forwarded the email stating, “Guess I’m one of the 5%.” (Id.) At trial, Metcalfe
testified that he found the email distasteful and offensive and responded only “rhetorically.” (Tr.
1470:20-1471:2 (Metcalfe)). Lightfine forwarded the same email again on June 22, 2009, this
time with the subject line “racist?” (PX345). Metcalfe did not forward the June 22 email or
report Lightfine. (Tr. 1473:13-20 (Metcalfe)). Metcalfe did not respond to the email but
testified that he recalled telling Lightfine to “knock it off.” (Tr. 1473:13-23 (Metcalfe)).
Also on March 9, 2009, Lightfine forwarded an email to Metcalfe, Moran and Carlini
about the introduction of a bill to establish a commission to study reparation proposals for
African Americans. (PX238). Metcalfe responded to the group, “Um, this is a joke, right?” to
which Lightfine replied, “Nope . . . are you surprised?” (Id.) Metcalfe responded again, “No,
but ‘disgusted’, ‘fed up’ and ‘YGBSM!’ are words that I would use.” (Id.)
On March 21, 2009, Moran forwarded an email to Metcalfe, Lightfine and Carlini with
the same message as the email Acred would later forward to Waters and Barcik in November
2009 regarding the disadvantages to whites from affirmative action and the incarceration and
dropout rates among African Americans. (PX229; PX230). The email ended with, “This needs

39

to be passed around because, this is a message everyone needs to hear!!!” and Metcalfe
forwarded the email with no text in the email body. (PX229; Tr. 1477:25-1478:9 (Metcalfe)).
On May 7, 2009, Carlini forwarded an email to Metcalfe and Lightfine that called for the
impeachment of Nancy Pelosi stating, “When asked how these new tax dollars would be spent,
she replied: ‘12 million illegal immigrants in our country who need our help along with
millions of unemployed minorities . . .’ (Read that quote again and again and let it sink in.)
‘Lower your retirement, give it to others who have not worked as you have for it.’” (PX349
(emphasis in original)). Metcalfe testified he did not recall seeing this email or whether he
responded to Carlini. (Tr. 1464:14-17 (Metcalfe)).
On September 9, 2009, Lightfine forwarded an email to Metcalfe and Carlini that
tastelessly joked about Hurricane Katrine and the response by the African American residents of
New Orleans. (PX241). Metcalfe forwarded the message with no text in the body of the email.
(Id.) Metcalfe did not express disapproval of the joke in his forwarded email and did not report
Lightfine for sending the joke. (Tr. 1480:1-9 (Metcalfe)).
On March 8, 2011, Armon CFO Joe Larson sent an email to Metcalfe, Carlini, Moran and
other F.E. Moran employees stating “So now im brians little African-American boy?” referring
to an attached image of a native tribe circulated among Armon executives. (PX231). Metcalfe
testified that he does not recall seeing this email and admitted that the term “boy” as used in the
email is derogatory. (Tr. 1484:9-1485:2 (Metcalfe)).
On January 13, 2012, Moran sent a Washington Post article to the Armon “Executive
Team” which included General Counsel Jay Marcus and CFO Larson and copying other
individuals. (PX364). The article complained that Obama did not deserve to become president
stating “Let that sink in: Obama was given a pass – held to a lower standard – because of the
40

color of his skin.” (Id.) Moran sent the same article to the Executive Team, Lightfine and others
again on October 9, 2012. (PX348).
C.

Emails Related to Minority Hiring Requirements

Plaintiffs also presented emails between FPN executives, superintendents, project
managers and/or sales representatives expressing a general hostility toward affirmative action
and minority hiring requirements. For example, on February 29, 2012, a sales representative
emailed Hebert regarding the EEO hiring requirements for a Dunkin Park project and Hebert
responded, “Hmmmm……this eeo and mbe crp is a killer.” (PX384). But Hebert provided
further context to this email at trial. He testified that the Dunkin Project had only a small amount
of labor hours and that it is nearly impossible to meet a minority goal on a job that size where
only one fitter is necessary because it required that one person work one or two days before
being swapped out with someone else. (Tr. 1288:14-1289:8, 1315:6-1317:2 (Hebert)). As a
result, there is no continuity and FPN loses money. (Id.)
On May 23, 2012, a sales executive emailed Metcalfe, Hebert, Acred, Barcik and other
FPN employees regarding a Nash Elementary project stating “NOW the good news! There are no
M/WBE, City Resident, Minority Workforce, Women Participation, etc. YAY!!!” (PX379).
Also, in December 2010, a FPN purchasing agent sent an email to Hebert in which she called
Ram Fire Protection, a Certified Minority Business Enterprise, a “certified lazy minority.”
(PX388). Hebert testified that he did not recall receiving the email and admitted that he did not
tell the purchasing agent, who reported directly to him, that he disapproved of the email or report
the email to Metcalfe or Human Resources. (Tr. 1285:2-21 (Hebert)).

41

VIII. Dr. Destiny Peery
Plaintiffs presented social psychological expert Dr. Destiny Peery to opine about the
potential relevance of implicit bias to this case. (Tr. 238:16-21 (Peery)). Dr. Peery is an Assistant
Professor of Law at Northwestern University and has an extensive background in social
psychology as it relates to legal doctrine and practice that qualified her to provide testimony
related to the psychology of a corporate culture of discrimination and people’s susceptibility to
implicit bias.3 Dr. Peery based her opinions and testimony on her review of relevant literature,
her experience as a social psychologist, and a study of email and deposition testimony produced
by FPN during discovery. (Tr. 238:22-239:7 (Peery)). Dr. Peery explained that in her review,
she explored the concepts of explicit bias, stereotyping, aversive racism and social tuning, all of
which are interrelated and under the umbrella of implicit bias. (Tr. 239:17-24 (Peery)).
Dr. Peery explained that humans have a dual model of cognition whereby the brain
process information through both automatic and deliberate processes and that implicit bias refers
to biases that arise from the more automatic or spontaneous part of a person’s cognition. (Tr.
240:22-24 (Peery)). She testified that, although implicit bias operates relatively automatically,
an individual can be aware of implicit bias and prevent such biases from influencing decision
making. (Tr. 240:18-22 (Peery)). In other words, an individuals’ behavior can be intentional
even if the activation of certain information influencing those behaviors is not. (Tr. 302:130-20
(Peery)). Dr. Peery testified that implicit bias is “remarkably” resistant to change. (Tr. 241:1124 (Peery)). She also testified that the fact that a person can make a non-discriminatory decision

3

On March 24, 2017, the Court ruled that Dr. Peery’s expert testimony was admissible under Fed. R. Civ.
P. 702. See Dkt. No. 278.

42

in one instance does not preclude her from making a discriminatory decision in another instance.
(Tr. 298:6-12 (Peery)).
A.

Stereotypes and Social Tuning

Dr. Peery testified that when considering the relationship between stereotypes and
implicit bias, the focus is on the power of exposure. (Tr. 245:1-6 (Peery)). She explained that
because implicit bias operates somewhat automatically in the brain, exposure to stereotypes can
influence a person’s behavior even if the person does not endorse the stereotype or believe it is
true.

(Tr. 245:6-15 (Peery)).

She testified also that exposure to stereotypes need not be

pervasive to have a discriminatory effect. (Tr. 296:5-11; 297:3-12 (Peery)).
Dr. Peery testified that “social tuning” can also result in discriminatory behavior. She
explained that “social tuning” is the process whereby people as social creatures “tune” or
conform to the behavior and viewpoints that they think will appeal to the people with whom they
are trying to connect. (Tr. 242:1-10; 18-23 (Peery)). Dr. Peery testified that “social tuning” can
occur subtly without any explicit exchange of information. (Tr. 304:5-17 (Peery)). She testified,
for example, that employees will “tune” to managers, such that when an employee becomes
aware of or suspects the attitudes or preferences of a manager, the employee will begin to
espouse those same attitudes or behave in ways that they think will be viewed favorably by that
manager. (Tr. 242:11-17 (Peery)).
Dr. Peery testified that she found evidence of stereotypes and the potential for social
tuning in the FPN emails that she reviewed. (Tr. 259:18-24 (Peery)). Specifically, Dr. Peery
found that the emails circulated among Metcalfe, Lightfine and Carlini not only contained racial
stereotypes but also conveyed a protectionist attitude toward whiteness that could feed
stereotyping and implicit bias. (Tr. 260:12-261:7, 268:19-270:16 (Peery); PX227; PX345). She
43

testified that the fact that Metcalfe repeatedly received—and did not express disapproval of—
emails containing negative stereotypes about African Americans suggests that the senders at a
minimum thought Metcalfe would tolerate the content of the e-mails. (Tr. 261:2-16, 261:22262:4 (Peery)). Dr. Peery opined that the fact that Armon employees were on the emails spoke
to a broader corporate culture that might include but go beyond FPN and raised the issue of
social tuning, as the subsidiary FPN might “tune” to the parent company leading to
discriminatory behavior consistent with the emails’ content. (Tr. 259-260:4-11 (Peery)).
Dr. Peery also testified that the November 2009 email Acred forwarded to Waters and
Barcik contained stereotypes about African Americans and demonstrated the concept of
“othering”—i.e., the creation of an us-versus-them mentality—which feeds into the use of
stereotypes and implicit bias.

(PX0230; Tr. 263:16-23 (Peery)).

Dr. Peery testified that

forwarding the email as Acred did suggests at minimum a tolerance, if not an outright
endorsement of the email’s contents.

(Tr. 265:17-266:3, 301:8-11 (Peery); PX230).

She

testified with regard to Waters and Barcik that, given the power of exposure, merely receiving
the email containing racial stereotypes could be sufficient to produce a discriminatory effect.
(Tr. 265:6-16 (Peery); PX230).
Dr. Peery concluded that based on the evidence that emails containing stereotypes about
African Americans were distributed at multiple levels and amongst multiple people at FPN, there
is at the lowest level an exposure to and a tolerance of racial stereotypes at FPN and at the
highest level an actual endorsement of such stereotypes. (Tr. 270:22-271:25 (Peery)). Dr. Peery
testified further that there is a large body of research showing that the presence of racial bias and
stereotyping affect all stages of the employment process including announcing that jobs are
available, deciding whom to interview or hire, evaluating employees on the job, and making
44

decisions about promotions and terminations. (Tr. 272:19-273:7 (Peery)). Dr. Peery testified
that research also shows that a climate of bias at an organization—like she found at FPN—leads
to more discriminatory employment decisions in that organization. (Tr. 273:17-22 (Peery)).
B.

Aversive Racism and Anti-Affirmative Action Sentiment

Dr. Peery testified that “aversive racism”—as distinguished from “old-fashioned” racism
associated, for example, with segregation and the pre-civil rights movement era—occurs when
there is a divide between what a person will express publicly and what she feels or what
influences her privately.

(Tr. 243:10-15 (Peery)).

Dr. Peery testified that opposition to

affirmative action can be evidence of aversive racism. (Tr. 275:11-24, 295:19-22 (Peery)). She
explained that the “classic” study on aversive racism looked at support for affirmative action and
found that people who publicly espoused egalitarian values did not support affirmative action
when it was seen to benefit African Americans rather than when it was seen to benefit other
groups, thereby demonstrating a conflict between what they expressed explicitly and what
actually drove their behavior. (Tr. 243:16-24; 275:11-24 (Peery)).
Dr. Peery testified that she found evidence of anti-affirmative action and anti-minority
hiring requirement sentiments in the FPN emails she reviewed. (Tr. 275:7-19 (Peery)). She
testified, for example, that emails like the November 2009 email Acred forwarded to Waters and
Barcik and the Washington Post article Moran circulated in January 2012 and again in October
2012 contained discussion suggesting that affirmative action benefits people who do not deserve
it and is the equivalent to discrimination against white people. (Tr. 275:27-276:13, 278:14279:11 (Peery); PX230; PX364). Dr. Peery opined that the emails suggested a continuance of
racial attitudes over the time period in which employment decisions related to Plaintiffs were
made that is consistent with the research showing that racial attitudes are persistent and resistant
45

to change. (Tr. 280:22-281:7 (Peery)). She did not opine as to whether there was actually
aversive racism at FPN. (Tr. 295:23-25 (Peery)).
C.

Effect on FPN Decision-Making Process

Dr. Peery testified that social psychological, industrial and organizational literature shows
that organizations with subjective, discretionary, non-accountable and non-transparent decisionmaking processes lack mechanisms to stop the automatic processes contributing to implicit bias
and, therefore, are ripe for the influence of bias. (Tr. 282:15-25, 283:15-21 (Peery)). Dr. Peery
testified that based on her review of deposition testimony describing the decision-making process
at FPN she found that decision makers did not conduct systemic, quantitative evaluations of
employees and made employment decisions based on subjective factors without any
accountability. (Tr. 284:6-21 (Peery)). Dr. Peery testified that in her professional opinion
because it lacked those features recognized in the research as helping to prevent the influence of
stereotypes and bias, FPN’s decision making process was ripe for the influence of implicit bias.
(Tr. 285:7-12 (Peery)).
Ultimately, Dr. Peery opined that FPN had a corporate culture that fosters implicit bias at
multiple levels and a decision-making process susceptible to the influence of implicit bias. Dr.
Peery did not offer any opinion as to whether FPN did, in fact, discriminate against the Plaintiffs,
whether any bias held by the upper level management trickled down to other layers of the
organization, or whether Acred or anyone else at FPN is racist. (Tr. 239:11-13, 296:1-4, 303:6304:4 (Peery)).
IX.

Statistical Experts Dr. William Bridges and Dr. Jonathan Guryan
Plaintiffs presented expert Dr. William Bridges to testify as to discrepancies between

white and black sprinkler fitters in FPN’s employment practices. (Tr. 479:21-480:1 (Bridges)).
46

Dr. Bridges is a sociologist and specializes in the fields of social statistics, sociology of labor
markets and social stratification and has extensive experience in quantitative and statistical
analysis.4

(Tr. 478:8-12, 479: 9-20 (Bridges)).

Defendants presented rebuttal expert Dr.

Jonathan Guryan to testify to deficiencies in Dr. Bridges’ statistical analysis and offer alternative
explanations for FPN’s employment practices based on his own statistical analysis of FPN data.
(Tr. 628:14-17, 629:1-10 (Guryan)). Dr. Guryan is a social scientist and labor economist and
conducts research focused on the causes and consequences of racial inequality in labor markets
and education. (Tr. 624:6-25 (Guryan)).5
Dr. Bridges provided the following observations and opinions at trial: (1) FPN failed to
hire any African Americans for supervisory positions above foreman; (2) hours and earnings of
African American fitters declined from 2008 to 2011, whereas hours and earnings for white
fitters declined only in 2009 and rebounded thereafter; (3) there was a statistically significant
difference in African American fitters’ hours and earnings compared to those of whites fitters
before and after March 1, 2009 when Acred replaced Sullivan; (4) from 2008 to 2011, African
American fitters were less likely than white fitters to be transferred and not laid off after a big
job ended; and (5) work for African American fitters was concentrated in a small number of job
sites and African Americans fitters worked on average fewer jobs than white fitters over time.
Dr. Guryan criticized Dr. Bridges’ observations for two reasons: (1) Dr. Bridges failed to
account for rival variables—for example, skill, performance, timing, or availability of African

4

The Court held a Daubert hearing on February 6, 2017 and on March 24, 2017 ruled that Dr. Bridges’
expert testimony was admissible under Fed. R. Civ. P. 702. See Dkt. Nos. 254, 278.

5

The Court held a Daubert hearing on February 9, 2017 and on March 24, 2017 ruled that Dr. Guryan’s
expert testimony was admissible under Fed. R. Civ. P. 702. See Dkt. Nos. 255, 278.

47

American workers in the external labor market—as potential alternative explanations for any of
his observations (Tr. 630:6-23, 636:24-637:1, 643:21-644:15 (Guryan); Tr. 602:12-20, 616:19-23
(Bridges)); and (2) Dr. Bridges failed to test for statistical significance and, therefore, rule out
chance in any of his observations except for the before-and-after analysis. (Tr. 637:1-8, 642:3643:13, 643:21-644:15 (Guryan); Tr. 566:4-569:10, 570:20-25, 597:13-20, 598:11-18 (Bridges)).
Dr. Guryan testified that, in his professional opinion, Dr. Bridges’ reports and conclusions
“definitely” would not pass peer review standards. (Tr. 691:1-4 (Guryan)).
A.

Lack of African American Fitters in Supervisory Positions

Dr. Bridges analyzed FPN payroll data for 2008 through 2011 and concluded that FPN
failed to hire an African American or person of any other minority for supervisory positions
above foreman during that period. (Tr. 482:4-15, 482:24-484:18, 486:17-487:2 (Bridges);
PX0389).
B.

Declining Hours and Earnings for African American Fitters

Dr. Bridges summarized FPN payroll data from 2008 to 2011 in order to analyze the
number of employees, job classification, aggregate hours worked and aggregate earnings by race
and ethnic group. (Tr. 483:1-484:2 (Bridges); PX389). He concluded based on his analysis of
this data that the hours and earnings of African American journeyman and foreman fitters at FPN
declined over time, in both aggregate terms and as a percentage of total hours and earnings by all
FPN fitters. (Tr. 487:3-20, 488:14-491:21 (Bridges); PX0389, PX0390, PX0391.) Dr. Bridges
expanded his analysis using Local 281 data from 2008 through 2014 and concluded that the trend
of declining African American employment at FPN continued beyond 2011 and through January
2015. (Tr. 491:22-492:1, 492:22-494:10 (Bridges); PX0396.)

48

Dr. Bridges also found that while both African American and white fitters experienced a
decline in hours in 2009, the decline was greater for African-American fitters.

(PX389).

Specifically, the total number of hours worked by white journeyman and foreman fitters in 2008,
42,967 hours, declined by approximately 18% in 2009 to 35,323 hours, while the total number of
hours worked by African American journeyman and foreman fitters in 2008, 5,496 hours,
declined by approximately 42% in 2009 to 3,176 hours. (PX0389).

Furthermore, the white

fitters as a group experienced declining hours only in 2009; thereafter, total hours worked by
white fitters increased and exceeded 2008 levels in both 2010 (up 29% to 45,271 hours) and
2011 (up 11% to 50,553 hours). (Id.; Tr. 487:14-20 (Bridges)). African American fitters as a
group experienced declining hours every year from 2008 through 2011: down 27% to 2,338
hours in 2010 and down 95% to 114 hours in 2011. (PX389; Tr. 487:14-20 (Bridges)).
Dr. Bridges did not conduct a statistical test to rule out chance or conduct rival variable
testing to rule out alternative explanations.

(Tr. 560:6-562:15, 566:4-569:25, 594:11-15

(Bridges)). Dr. Guryan testified that several rival variables could potentially explain the patterns
Dr. Bridges observed, for example, skill level, fitter performance, willingness to accept work
offered, job site location relative to fitters’ homes or availability of African American workers in
the external labor market. (Tr. 639:8-19 (Guryan)). Dr. Guryan explained that while Dr. Bridges
need not control for every possible rival variable, the analysis becomes more informative as
more rival explanations are controlled for and ruled out. (Tr. 645:6-8, 641:21-22 (Guryan)).
Dr. Guryan conducted a test controlling for the availability of African American workers
in the Local 281 labor pool to determine if availability was one possible non-discriminatory
explanation of the decline in hours and earnings among African American fitters at FPN. (Tr.
648:12-19 (Guryan)).

Based on what he deemed the most conservative view of the data
49

available, Dr. Guryan observed that from 2008 to 2011 African American fitters were overrepresented at FPN when compared with the number of African American fitters in the Local
281: the percentage of fitters who were African American at FPN was greater than the
percentage of fitters who were African American in the Local 281 labor pool. (Tr. 649:23-650:6,
653:16-22 (Guryan); DX176).

Additionally, on average from 2008 through 2011, FPN’s

employment of African Americans was statistically significantly higher than the labor-pool
benchmark for those four years.

(Tr. 655:8-13, 658:16-23 (Guryan)).

Broken down by

individual years, however, FPN’s employment of African Americans was only statistically
significantly higher than the labor-pool benchmark in 2008; Dr. Guryan could not rule out
chance for the observations in 2009 and 2010. (Tr. 654:24-4, 658:16-23 (Guryan)). FPN’s
employment of African Americans was actually lower than the percentage of African Americans
in Local 281 in 2011, though not to a statistically significant degree. (Tr. 655:5-7, 658:16-23
(Guryan); DX176).
C.

Disparity in African American Fitters’ Hours and Earnings Before and After
March 1, 2009

Dr. Bridges conducted a before-and-after test analyzing the change in hours and earnings
of the average African American fitter before and after March 1, 2009, when Sullivan was
transferred to a different role and Acred became the primary decision-maker with regard to fitter
employment at FPN.

(Tr. 506:7-21 (Bridges)). 70 white fitters and four African American

fitters worked as journeymen or foremen for FPN both before and after March 1, 2009. (Tr.
507:9-508:10 (Bridges)). Dr. Bridges found that the average white fitter worked 350 more hours
after March 1, 2009 whereas the average African American worked 538 fewer hours after that
date. (Tr. 509:23-510:3 (Bridges)). Dr. Bridges conducted a t-test for statistical significance and
50

found that the difference was statistically significant with less than 1% probability the result
occurred by chance. (Tr. 508:11-509:14 (Bridges)). Dr. Bridges conducted the same analysis
with regard to earnings and observed the same pattern: earnings by white fitters increased while
earnings by African American fitters decreased after March 1, 2009 with a 1% probability the
result occurred by chance. (Tr. 510:4-13 (Bridges)). Dr. Bridges did not offer any opinion as to
whether the difference between African American and white fitters before and after March 1,
2009 could be attributed to discrimination or to the Great Recession. (Tr. 510:18-21, 525:9-21
(Bridges)).
Dr. Bridges did not conduct rival variable testing to rule out alternative explanations for
his observations. (Tr. 570:1-3, 20-25, 575:12-577:1, 594:11-15 (Bridges)). Dr. Bridges testified,
however, that in his opinion the availability of workers in the external labor pool was not
relevant to the before-and-after analysis because it compared only fitters employed by FPN and,
therefore, changes in the external labor pool would not affect the analysis. (Tr.511:22-512:10
(Bridges)).

Dr. Guryan noted that the before-and-after analysis did not consider whether

individuals considered in the data ever turned down work or were not available to work during
any period of time or other variables that could explain the pattern, for example, the types of jobs
being done at FPN and the skill requirements for those jobs. (Tr. 679:5-680:23 (Guryan)). This
lack of incorporating these variables significantly undermined the validity of Bridges’
conclusions. After weeks of testimony, it was clear to the Court that a pipefitter would not
necessarily be available for every job, especially if he was already working on another project.
The named plaintiffs each described scenarios where they did not notify the employer about their
desire to be placed on a particular job at a particular time because they were already working,
working for a different company, or doing something entirely different. Bridges’ statistical
51

analysis failed to take into account these numerous and inherent variables thereby significantly
diminishing their value. In fact, his analysis suggested that every AfricanAmerican pipefitter
was always available for every job even if that particular person was already working in a
position and even in a position as a superintendent.
D.

Disparity in Likelihood of Reassignment of White and African American
Fitters after a Large Job

Dr. Bridges compared how FPN treated African American and white fitters after a large
job ended. (Tr. 514:8-515:3 (Bridges)). “Large” jobs were jobs that required at least 1,000
hours of fitter labor. (Tr. 514:14-18 (Bridges)). Dr. Bridges found that in 2009 through 2011,
white fitters working on a large job at any point during that job were more likely than African
American fitters to be reassigned within two weeks of the job ending versus laid off. (Tr. 514:8515:3, 516:12-21 (Bridges)). Specifically, of all fitters who had worked on a large job, African
Americans continued working for FPN after that job ended only 20% of the time in 2009 and 0%
of the time in 2010 and 2011. (Tr. 518:25-519:6 (Bridges); PX402). White fitters, on the other
hand, continued working for FPN 48.6% of the time in 2009, 75% of the time in 2010 and 76.4%
of the time in 2011. (PX402). Dr. Bridges conducted a similar test for fitters who had worked
on a large job within the last 30 days of the job and found a similar trend. (Tr. 517:22-23
(Bridges)). As Dr. Guryan opined, however, these analyses are misleading because as many
people who worked on a job at one point are not still working on the job as it ramps down within
the last 30 days or when it eventually ends. (Tr. 684:23-686:5 (Guryan)). More importantly, it
assumes that African American fitters are available for the position.
Dr. Bridges did not conduct a statistical test to rule out chance or conduct rival variable
testing to rule out alternative explanations. (Tr. 570:1-3, 575:12-577:1, 594:11-15, 598:11-18
52

(Bridges)). Dr. Bridges testified again that in his opinion the availability of workers in the
external labor pool was not relevant to this analysis because it only pertained to fitters employed
by FPN. (Tr. 519:10-22 (Bridges)).
E.

Segregation of African Americans to a Subset of Jobs

Dr. Bridges testified that that, based on his analysis of the FPN payroll data, hours
worked by African American employees were concentrated in a small number of job sites. (Tr.
494:22-495:23 (Bridges)). For example, Dr. Bridges found that in 2010, five jobs accounted for
more than 90% of African American hours: Boone Clinton, Walmart, Powell School, Lee
Pasture School, and Matteson Community. (Tr. 497:18-498:7 (Bridges); PX0395). For each of
these jobs, FPN’s contract included a minority hiring requirement (Matteson) or, if it did not,
FPN represented to the general contractor that it would provide minority labor (Boone County,
Lee Pasture, Walmart, Powell). (Tr. 1289:11-21, 1329:19-21, 1373:14-1375:13 (Hebert); Tr.
1816:16-1817:1 (Waters); 11/11/15 Hebert 30(b)(6) Dep. Des. 120:16-2015; Hebert (individual)
Dep. Des. 135:22-136:19; JX24; PX162; PX163; PX215; PX293; FPTO, Ex. 1 SOUF ¶ 46).
Additionally, all five jobs were located in a majority-minority neighborhood—although only the
Matteson, Walmart and Powell jobs were in predominantly African American neighborhoods.
(PX162; PX163; PX215; PX288; PX293; PX296; PX300; PX315; PX507; PX509; PX510;
FPTO, Ex. 1 SOUF ¶ 46). FPN also assigned white fitters to each of these five jobs. (JX34.)
Dr. Bridges summarized the job distribution patterns by using an index of dissimilarity
statistic: an index of zero indicates that the distribution of hours amongst white and African
American fitters at these job sites was exactly equal and an index of 100 indicates there is no
overlap at all. (Tr. 498:19-500:4 (Bridges)). Dr. Bridges found with respect to the FPN data that
the index of dissimilarity was 90%, meaning 90% of labor hours must be redistributed to achieve
53

a proportional distribution.

(Tr. 500:5-8 (Bridges)).

Dr. Bridges conducted a computer

simulation to determine what the index would have been if individuals were randomly assigned
to job sites and found that of 10,000 simulations of random assignment, the index of dissimilarity
was 90% or higher only 3% of the time. (Tr. 503:8-506:5 (Bridges)).
Dr. Bridges also testified that from 2008 to 2011, on average, African American fitters
worked on fewer jobs than white fitters over time. (Tr. 520:6-523:2; PX0403). FPN employed
four African Americans in 2010: Martin, Truesdell, Tejada and James Pikes. (JX0034). 100%
of Martin’s hours, 100% of Tejada’s hours, 89% of Truesdell’s hours and 81% of Pikes’ hours
worked for FPN in 2010 were recorded at one these five locations. (JX34; PX478A; PX483A).
Except for the dissimilarity index, Dr. Bridges did not conduct a statistical test to rule out
chance or conduct rival variable testing to rule out alternative explanations as to why on average
African Americans fitter worked at a smaller number of jobs. (Tr. 597:13-20, 602:12-20,
616:19-23 (Bridges)). Dr. Guryan testified that Dr. Bridges should have done so, particularly
given the small number of African American employees at FPN. (Tr. 674: 1-10 (Guryan)).
Neither Dr. Bridges nor Dr. Guryan provided an opinion as to whether African American
fitters were treated unfairly or differently or suffered any other disadvantage by being segregated
to certain jobs. (Tr. 570:15-21, 571:17-20, 595:19-25, 600:15-24 (Bridges) Tr. 676:23-677:5
(Guryan)).
CONCLUSIONS OF LAW
I.

Timeliness Arguments
As an initial matter, FPN uses its Proposed Conclusions of Law to relitigate certain issues
already decided on summary judgment—namely, that FPN waived its Section 1981 time bar
affirmative defense (see Dkt. No. 280 at 14-16); that Plaintiffs did not fail to exhaust all
54

administrative remedies with regard to failure to transfer or rehire claims (see id. at 16-19); and
that Martin’s and Truesdell’s second right-to-sue letters from the EEOC are effective. (See id. at
16, n.9.) The Court will not reconsider its prior rulings. Additionally, Plaintiffs timeliness and
administrative exhaustion arguments with regard to Martin’s and Truesdell’s claims based on
their 2009 layoffs are moot; Martin and Truesdell waived such claims. (Dkt. No. 307; see also
Dkt. No. 220 at 7, n.8-9; Dkt. No. 221 at 7, n.6-7.)
II.

Evidentiary Issues
At trial, Defendants objected to the admissibility of various documents presented by

Plaintiffs during trial. The court either ruled on the objection when raised or took it under
advisement, allowing the evidence to be presented because, unlike a jury, the court can separate
what is and is not admissible when conducting its ultimate review of Plaintiffs’ case. To the
extent a document taken under advisement is considered within this opinion, it was deemed
admissible.
III.

Plaintiffs’ Discrimination Claims
Martin and Truesdell allege disparate treatment claims under Title VII and Section 1981;

Tejada brings his remaining claim under Section 1981. “[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.” McGowan v. Deere & Co., 581 F.3d 575, 579 (7th Cir. 2009)
(quoting Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 940 (7th Cir.1996)); see also Sublett
v. John Wiley & Sons, Inc., 463 F.3d 731, 736 (7th Cir. 2006). Therefore, the discussion that
follows applies with equal force to the remaining claims under both Title VII and Section 1981.
In Ortiz v. Werner Enterprises, Inc., the Seventh Circuit eliminated the distinction
between “direct” and “indirect” evidence in employment discrimination claims. 834 F.3d 760,
55

764 (7th Cir. 2016). Instead, “evidence must be considered as a whole.” Id. While Ortiz did
not disturb the burden-shifting framework under McDonnel Douglas, that framework does not
apply to the fact-finder’s analysis at trial. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 715 (1983) (at a bench trial, the burden-shifting framework “drops from the case,” “the
factual inquiry proceeds to a new level of specificity,” and the question is whether “the employer
. . . treat[ed] some people less favorably than others because of their race”) (internal citations and
quotation marks omitted)); Morgan v. SVT, LLC, 724 F.3d 990, 997 (7th Cir. 2013) (“[T]he
original purpose of McDonnell Douglas . . . was to outline a series of steps that, if satisfied,
would support a plaintiff’s right to reach a trier of fact”); Mattenson v. Baxter Healthcare Corp.,
438 F.3d 763, 767 (7th Cir. 2006) (reversing district court that gave a McDonnell Douglas
instruction at trial “despite tireless repetition by appellate courts that the burden-shifting formula
of that case is not intended for the guidance of jurors; it is intended for the guidance of the judge
when asked to resolve a case on summary judgment”); Hennessy v. Penril Datacomm Networks,
Inc., 69 F.3d 1344, 1350 (7th Cir. 1995) (“It is well-established in this circuit that the burdenshifting methodology should not be used during the jury’s evaluation of evidence at the end of a
trial on the merits . . .”); Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir. 1994) (“[T]he
Supreme Court has held that this burden-shifting model applies to pretrial proceedings, not to the
jury’s evaluation of evidence at trial.”). Therefore, the Court need only focus on “the sole
question that matters: Whether a reasonable juror could conclude that [the plaintiff] would have
kept his job if he had a different [race], and everything else had remained the same.” Ortiz. 834
F.3d at 764; see also Seventh Circuit Pattern Jury Instructions, 3.01 (“Plaintiff must prove by a
preponderance of the evidence that he was laid off, not transferred, and not rehired by Defendant
because of his race. To determine that Plaintiff was laid off, not transferred, and not rehired
56

because of his race, you must decide that Defendant would not have laid off and failed to transfer
or rehire Plaintiff had he been white but everything else had been the same.”).
At trial, Plaintiffs offered the following evidence to show FPN laid off or failed to
transfer or hire them because of their race: evidence of a racially biased corporate culture and a
decision-making process ripe for influence by such bias at FPN; evidence regarding each
plaintiff’s individual career at FPN; statistical evidence of alleged systemic discrimination
against African Americans by FPN; and evidence of alleged segregation or “pigeonholing” of
African American fitters into a subset of jobs by FPN.
Plaintiff’s evidence certainly raises concerns about the culture at FPN. There is no
question that certain high-level executives at FPN and its parent company held disturbingly racist
views and were comfortable expressing these views amongst each other in a work environment.
It is less clear, however, what effect if any that bias at the executive level had on any
employment decisions made with regard to Plaintiffs. Ultimately Plaintiffs failed to establish
that necessary link and, thus, failed to show by a preponderance of the evidence that FPN failed
to transfer or rehire them at any time because of their race.
A. A Susceptibility to Influence of Implicit Bias Does Not Prove Actionable
Discrimination
Evidence of a racially-biased corporate culture can be circumstantial evidence of
discrimination against a particular plaintiff. See Mattenson, 438 F.3d at 770 (observing that
“[p]roof of a pervasive firm or divisional culture of prejudice against . . . minority workers”
“implies some likelihood that the plaintiff lost his job because of discrimination, though not a
certainty, because even in a discriminatory workplace some employees are fired for reasons
unrelated to their membership in a group that the employer discriminates against”) (emphasis in
57

original); Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 356 (6th Cir. 1998)
(“Circumstantial evidence establishing the existence of a discriminatory atmosphere at the
defendant’s workplace in turn may serve as circumstantial evidence of individualized
discrimination directed at the plaintiff.”) (internal quotation marks omitted). Evidence that a
workplace had an atmosphere of racial bias or that corporate executives held racial attitudes goes
to motive and whether such atmosphere or attitudes may have tainted the adverse employment
decision.

See, e.g., Margolis v. Tektronix, Inc., 44 Fed. Appx. 138, 141 (9th Cir. 2002)

(observing that a jury may use “evidence which tends to show an atmosphere of gender
discrimination” to find that discriminatory bias “tainted the layoff decision” in reduction in
force); Conway v. Electro Switch Corp., 825 F.2d 593, 597-98 (1st Cir. 1987) (observing that
“circumstantial evidence of a discriminatory atmosphere at a plaintiff’s place of employment is
relevant to the question of motive in considering a discrimination claim”). It is also useful in
assessing whether the proffered reasons for the adverse employment decision are merely pretext.
See, e.g., Ryder v. Westinghouse Electric Corp., 128 F.3d 128, 132 (3d Cir. 1997) (“[A] plaintiff
may offer circumstantial proof of intentional discrimination . . . in the form of . . . formal or
informal managerial attitudes held by corporate executives. We have noted that it is often crucial
to the [factfinder’s] assessment of whether the employer’s reasons were pretextual and the
ultimate question whether the employer intentionally discriminated against an employee.”
(internal citations omitted)); Antol v. Perry, 82 F. 3d 1291, 1302 (3d Cir. 1996) (“The
atmosphere is relevant to whether defendant’s asserted legitimate non-discriminatory reasons
were pretextual and relevant to the ultimate issue of whether defendant intentionally
discriminated against plaintiff.”)

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While evidence of a discriminatory culture is not in and of itself proof of individualized
discrimination, it “tend[s] to add color to the employer’s decision-making processes and to the
influences behind the actions taken with respect to the individual plaintiff,” Cummings, 265 F.3d
at 56, 63 (1st Cir. 2001) (internal quotations omitted), and is therefore useful to the trier of fact
when considering the evidence as a whole under Ortiz. See Mattenson, 438 F.3d at 770 (citing
Cummings with approval); see also Conway, 825 F.2d at 597-98 (While “‘proof of a general
atmosphere of discrimination is not the equivalent of proof of discrimination against an
individual,’ it may be one indication that the reasons given for the employment action at issue
were ‘implicitly influenced’ by the fact that the plaintiff was of a given race, age, sex or
religion”) (quoting Sweeney v. Bd. of Trustees of Keene State Coll., 604 F.2d 106, 113 (1st Cir.
1979)).

Dr. Peery’s testimony provided just that—circumstantial evidence that helped

contextualize other evidence presented at trial, in particular the emails and testimony regarding
racists comments and attitudes. Specifically, Dr. Peery’s testimony showed how stereotypes and
aversive racism could have influenced decision-makers at FPN.
The emails containing racist remarks that were circulated among Metcalfe, Moran,
Lightfine and Carlini are indicative of a broad corporate culture of bias within Armon, FPN and
possibly other subsidiaries. Remarks by corporate executives are particularly probative of a
discriminatory environment. See, e.g., Ercegovich, 154 F.3d. at 356 (remarks that are “‘not an
off-hand comment by a low-level supervisor but a remark by a senior official” are probative of
“corporate state-of-mind or a discriminatory atmosphere”); Ryder, 128 F. 3d at 133 (remark was
“particularly” probative of “informal managerial attitudes” because it was by the CEO rather
than “an off-hand comment made by a low-level supervisor”). Remarks evidencing corporate
bias, even if isolated or non-contemporaneous with employment decisions, are more than mere
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“stray remarks” and may be probative of discrimination. See Emmel v. Coca-Cola Bottling Co.
of Chicago, 95 F.3d 627, 632 (7th Cir. 1996) (“statements by top officers at Coca-Cola
indicating a corporate bias against women holding upper-management positions” were “more
than just stray comments”).
Moreover, FPN’s decision-making process was “ripe” for influence by this corporate
culture of bias. Employment decisions were highly subjective and made by one individual with
input from only a handful of others.

And FPN did not employ any meaningful internal

mechanisms to prevent racial bias at the executive level from shaping employment decisions
made below.

FPN’s practices were imperfect and certainly created a potential for racial

discrimination. See, e.g., Kimble v. Wis. Dep’t of Workforce Dev., 690 F.Supp.2d 765, 775-76
(E.D. Wis. 2010) (“[W]hen the evaluation of employees is highly subjective, there is a risk that
supervisors will make judgments based on stereotypes of which they may or may not be entirely
aware.”). Yet, they do not by themselves show that FPN decision-makers actually decided not to
transfer or rehire Plaintiffs based on their race.
Plaintiffs must show the bias affected the actual decision-makers such that the company
engaged in unlawful discrimination. The emails circulated amongst Metcalfe, Lightfine, Carlini
and Moran are not enough as none of these individuals made any decisions about fitter
employment at FPN. C.f. Emmel, 95 F.3d at 632 (executives that made remarks indicating
corporate bias against women were actually involved in the promotions at issue). Additionally, a
corporate bias or the bias of non-decision-makers cannot merely be imputed to actual decisionmakers to find discriminatory action.

See, e.g., Jackson v. City of Chi., No. 13 C 8304, 2016

WL 1056656, *11-12 (N.D. Ill. Mar. 17, 2016) (intentional discrimination cannot be inferred
where there is a lack of connection between the alleged bias and the adverse decision). Acred
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made all fitter employment decisions for FPN in 2009 and 2010 when Plaintiffs were laid off.
Thus, Plaintiffs had to show that Acred’s decisions were in fact improperly influenced by an
implicit bias. See Cook v. IPC Int'l Corp., 673 F.3d 625, 628 (7th Cir. 2012) (to impute
discriminatory motive under “cat’s paw” theory plaintiffs must show decision-maker was in fact
manipulated by non-decision-maker); Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101,
1108 (7th Cir. 2012) (in retaliation claim, plaintiffs must establish that a “retaliatory motive
actually influenced the decision-maker, not merely that it could have” or, under the “cat’s paw”
theory of liability, that someone “improperly influenced the decision-makers”) (emphasis in
original); Jackson, 2016 WL 1056656 at *11 (“Speculation that improper influence may have
existed is insufficient” to succeed on claim under cat’s paw theory.).
Plaintiffs failed to establish by a preponderance of the evidence that Acred made
decisions influenced by an implicit bias. C.f. Kimble, 690 F.Supp.2d at 778 (“[I]n addition to
failing to provide a credible explanation of the conduct complained of, [the decision maker]
behaved in a manner suggesting the presence of implicit bias.”). Plaintiffs identified a handful of
emails that Acred received between 2009 and 2012 that exposed him to racial stereotypes about
African Americans that could have created implicit bias. See, e.g., Margolis, 44 F. App’x at 141
(observing that “stereotyping, as possibly indicated by [supervisor’s] remarks, can serve as
evidence that gender played a role in the employer’s decision”) (citing Price Waterhouse v.
Hopkins, 490 U.S. 228, 251 (1989)); Kimble, 690 F.Supp.2d at 776 (recognizing that stereotypes
“can bias how [individuals] process and interpret information and how they judge other people.”)
(citing several law review articles on the subject of implicit bias). But none of the emails raises
an issue of “social tuning” as Acred received each from either a peer or subordinate and not from
a supervisor whose views Acred might subconsciously adopt as his own. Acred forwarded two
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of the emails to Waters and Barcik indicating a possible tolerance or endorsement of their
contents. Notably, the emails he forwarded contained, among other statements, complaints about
affirmative action—an issue FPN managers faced daily due to minority hiring requirements. The
emails could reflect an implicit racial bias against African Americans; they could also reflect a
more benign frustration with affirmative action initiatives that sometime reduced FPN project
margins on jobs.
Other evidence negates any notion Acred’s employment decisions were influenced by an
implicit bias. Acred never displayed racist attitudes at work. The fact that Acred used a racial
slur fifteen years ago, before ever becoming superintendent, in his own home and not directed at
any particular person is hardly evidence he held and acted on racist views in 2009 and 2010
when deciding whether to transfer or rehire Plaintiffs. See Fleishman v. Cont’l Cas. Co., 698
F.3d 598, 605 (7th Cir. 2012) (“[I]solated comments are not probative of discrimination unless
they are contemporaneous with the discharge or causally related to the discharge decisionmaking process.” (internal quotation omitted)); Egonmwan v. Cook Cty. Sheriff’s Dep’t, 602
F.3d 845, 850 (7th Cir. 2010) (“stray remarks are . . . insufficient to establish discriminatory
motivation” unless “(1) made by the decision maker, (2) around the time of the decision, and (3)
in reference to the adverse employment action.”). Rather, ample evidence presented at trial
suggests Acred based these decisions on legitimate reasons, such as lack of work or poor
performance on a job.
Acred took his responsibility as superintendent seriously. Plaintiffs denied ever being
treated unfairly by Acred and FPN witnesses vouched for his capabilities as a supervisor. Even
Sullivan, who Plaintiffs contend was the fairer of the two superintendents, testified that Acred
was a good evaluator of personnel and job situations and that he always valued and agreed with
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Acred's opinions. Acred even laid off his own brother over better performing fitters when there
was a lack of work, despite then having to provide for his brother for three years as a result.
Ultimately, Plaintiffs failed to tie Dr. Peery’s opinions regarding implicit bias to the
individual circumstances surrounding their employment with FPN as required to prove
intentional discrimination actually occurred at FPN. See, e.g., Abdel-Ghaffar v. Illinois Tool
Works, Inc., No. 12 C 5812, 2015 WL 5025461, at *8 (N.D. Ill. Aug. 24, 2015), as amended
(Sept. 30, 2015), aff’d, 706 F. App’x 871 (7th Cir. 2017) (quoting Adams v. Wal-Mart Stores,
Inc., 324 F.3d 935, 939 (7th Cir. 2003) (“Bigotry. . . is actionable only if it results in injury to a
plaintiff; there must be a real link between the bigotry and an adverse employment action);
Chambers v. Am. Trans Air, Inc., 17 F.3d 998, 1004 (7th Cir. 1994) (“Liability under Title VII
does not turn on the bigotry of company managers unless that bigotry resulted in injury to the
plaintiff. . . . There needs to be a link between a[] [company’s] manager’s alleged prejudice, and
the decisions that [plaintiff] is challenging.”) (internal citation omitted)).
B. Plaintiffs Failed to Prove Actionable Discrimination in FPN Decisions to Not
Transfer or Rehire
i.

Plaintiff Kenneth Martin

Martin claims FPN failed to transfer him in 2009 and failed to transfer or rehire him in
2010 because of his race. FPN laid off Martin in September 2009 after the DePaul O’Malley
Lewis job ended. By 2009 Martin had been in the industry for more than a decade and had a
reputation as a good worker. Before being laid off, he worked steadily without interruption
under Sullivan and then Acred for four years. He received consistent B and B- ratings from FPN
throughout the previous year including as recently as September 3, 2009. The O’Malley Lewis

63

job was successful and, by all indications, Martin was meeting performance expectations in
September 2009.
Martin claims he should have been transferred to another job after the O’Malley Lewis
job ended. Martin identified a handful of white fitters he claims were assigned to ongoing jobs at
the time he was laid off including Erik Massey to the Kellogg Cancer Center, Dan Hughes to Lee
Pasture, William Sulich to DePaul, Randy Iverson to Bestway and Gordon Ritter to Bestway and
others. While these men were foreman for FPN, they were not necessarily similarly situated as
Martin. See Bio v. Fed. Express Corp., 424 F.3d 593, 597 (7th Cir. 2005) (“A similarly situated
employee is one who is ‘directly comparable to [the plaintiff] in all material respects.’”) (citation
omitted); Radue v. Kimberly-Clark Corp., 219 F.3d 612, 619 (7th Cir. 2000), overruled on other
grounds by Ortiz, 834 F.3d 760 (7th Cir. 2016) (“[A] showing of discrimination requires more –
much more than simply identifying employees who obtained jobs around the same time that the
plaintiff was looking for a position.”). None of these men worked with Martin on the O’Malley
Lewis job. Also, except for Iverson, each of these individuals was assigned to the jobs listed at
least one week before Martin was even laid off. Martin was not transferred to the Bestway job;
instead, he was laid off for “lack of work” which he claims is pretext.
Unfortunately for Martin, the Great Recession hit the fitter industry and halted all work at
FPN in 2009. Sullivan credibly confirmed that when he transferred roles in February 2009 there
were no new, upcoming jobs at FPN. See Hill v. Tangherlini, 724 F.3d 965, 968 (7th Cir. 2013)
(“An inquiry into pretext requires that we evaluate the honesty of the employer’s explanation,
rather than its validity or reasonableness.”). Dr. Bridges’ observation that hours and earnings
declined for both African Americans and whites in 2009 is consistent with Sullivan’s testimony.
See Adams v. Ameritech Services, Inc., 231 F.3d 414, 423 (7th Cir. 2000) (recognizing that
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“statistical evidence can be very useful to prove discrimination in [disparate treatment] cases,”
although “it will likely not be sufficient in itself”). Dr. Bridges also found that the decrease was
greater for African Americans than whites, however, he failed to rule out chance or other
alternative explanations for that trend.
Martin attributes the failure to transfer to the change in leadership from Sullivan to
Acred. But there is little support for this claim. Acred had historically transferred Martin when
work was available. Martin worked steadily for Acred for nearly six months and, when work on
the O’Malley Lewis job was slow, Acred would transfer Martin to other jobs to keep him busy.
Martin never filed any complaint against Acred in 2009 or after. Dr. Bridges’ before-and-after
analysis shows a statistically significant difference in hours worked by African Americans and
white fitters before and after March 1, 2009 but fails to account for any alternative explanations,
for example, that African American fitters declined FPN’s offers to work as Truesdell did in
December 2009 or were unavailable because they began working for a competitor as Martin in
January 2010. Finally, and most notably, Acred was the person to rehire Martin in June 2010.
Martin worked on the Boone County job from June 2010 until August 2010 when the job
ended and he was laid off. Martin had performance issues on the Boone County job. Acred
hired him to continue as foreman when FPN took over the job from Martin’s previous employer,
UFP. Martin assisted in creating the schedule and estimated labor cost for completing the job
that FPN submitted to the general contractor but then exceeded that budget by nearly double.
Labor-hour budgets are key components of any bid submitted for a job and exceeding budgeted
hours directly affects the job’s profitability.
Following Boone County, FPN’s opinion of Martin’s capabilities changed. When FPN
took over the job, Hebert believed Martin was the best man for the job. Hebert testified that after
65

Boone County he would not have rehired Martin if it had been his decision. Indeed, Acred laid
off and did not transfer Martin when the job ended. Acred believed he had a legitimate basis for
his decision. See Gates v. Caterpillar, Inc., 513 F.3d 680, 689 (7th Cir. 2008) (“The proper
inquiry mandates looking at Gates’ job performance through the eyes of her supervisors at the
time of her suspension and termination.); Moser v. Ind. Dep’t of Corrs., 406 F.3d 895, 901 (7th
Cir. 2005) (“Certainly earlier evaluations cannot, by themselves, demonstrate the adequacy of
performance at the crucial time when the employment action is taken.”) (citation omitted).
Martin called FPN to inquire about work a few times after being laid off. Martin
identified several jobs ongoing jobs to which white fitters including Massey, Sulich, Hughes,
Iverson and Gordon Ritter were assigned around the time he was laid off and calling to inquire
about work. Only Hughes worked on the Boone County job with Martin. However, unlike
Martin, Hughes never had a performance issue similar to Martin’s. See, e.g., Argyropoulos v.
City of Alton, 539 F.3d 724, 735 (7th Cir. 2008) (finding poor performance as non-discriminatory
reason for termination and that performance histories are relevant to the similarly situated
analysis). A flood occurred on one of his jobs in 2009 but Hughes was not responsible.
Regardless, shortly after being laid off, Martin enrolled in school and never called FPN
again about work. As was standard in the fitter industry, if Martin was interested in rehire, he
should have contacted FPN. But even if FPN tried to contact him, he would have been in school
and unavailable for rehire.
Martin failed to show by the preponderance of the evidence that he would have continued
working for FPN through 2009 and 2010 had he been white and everything else remained the
same.

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ii.

Plaintiff Aaron Truesdell

Truesdell claims FPN failed to transfer him in 2009 and failed to transfer or rehire him in
2010 because of his race. Truesdell worked steadily for FPN under Sullivan and then Acred
from 2006 to 2009. Sullivan hired Truesdell based on his reputation as a good worker and
foreman. Truesdell performed well from 2006 to 2009 and received a B+ on every rating FPN
conducted. Truesdell worked as a night foreman with Martin on the O’Malley Lewis project and
as head foreman on the CME Project. Both projects were profitable for FPN. Chase Bank was
the last job he worked on before being laid off in July 2009 at which time Truesdell appeared to
be meeting performance expectations.
Truesdell identified only one white fitter who was assigned to work on an ongoing job
within a few weeks of Truesdell’s layoff when he claims he should have been transferred:
William Sulich who was transferred to DePaul Media Center.

Truesdell’s other alleged

comparators were not assigned to a new job until more than one month after his layoff. It is
worth nothing that Iverson is one of Truesdell’s claimed comparators, however, Truesdell
testified that he was hired to replace Iverson, a white fitter, on the Chase Bank job. The fact that
Truesdell replaced a white fitter on a job is not consistent with his claim that FPN treated white
fitters more favorably than African American fitters.
FPN laid off Truesdell for “lack of work” which he claims is pretext. Truesdell was laid
off within two weeks of Martin. As already discussed, FPN presented credible evidence that the
Great Recession in fact affected its job activity and that Sullivan and Acred had lay off more
workers as a result. Similarly, Truesdell cannot credibly attribute the lack of transfer to the
change in leadership from Sullivan to Acred. Like Sullivan, up until Truesdell’s layoff, Acred
would transfer Truesdell from job to job to avoid laying him off and allowed him to collect
67

wages at the foreman rate even when he worked journeyman because no foreman work was
available
Significantly, FPN reached out to Truesdell about coming back to work twice, in
December 2009 and February 2010, but he declined. Truesdell told FPN he preferred to work
for minority-owned competitor UFP. During that time, Truesdell has an “open invitation” to
return to FPN. This, too, is inconsistent with any claim he was treated unfavorably. Eventually,
Truesdell accepted the invitation and returned to FPN.
Truesdell returned to work on the Lee Pasture job again replacing a white fitter as
foreman—yet another fact inconsistent with the belief he was being treated less favorably than
whites. FPN laid off Truesdell in September 2010 after the Walmart job. FPN considered the
Walmart job a “failure” and blamed the salesperson for submitting an unrealistic bid but, as
Acred testified and the After Action Report confirms, also blamed Truesdell as foreman for poor
communication and not staying within the budgeted hours. Truesdell may not have been entirely
at fault but in FPN’s view he was at least partly so. See Abdel-Ghaffar v. Illinois Tool Works
Inc., 706 F. App’x 871, 875 (7th Cir. 2017) (“Courts are not concerned with whether an
employer’s reason for discharge was inaccurate or unfair, but whether the employer honestly
believed the reason it has offered.”) (internal quotations omitted). FPN did not transfer Truesdell
after the Walmart job; he was again laid off for “lack of work.” Truesdell identified white fitters
who were assigned to ongoing jobs at that time including Massey, Sulich, Hughes and Ritter.
None of these individuals worked on the Walmart job with Truesdell or otherwise oversaw a
“failure” of a job that required an After-Action meeting and Report. Regardless of whether other
jobs were available, Acred believed he had a legitimate reason for not transferring Truesdell.
See, e.g., Cruz v. John-Jay Corp., No. 3:05CV508 CAN, 2006 WL 3136725, at *7 (N.D. Ind.
68

Oct. 30, 2006) (although plaintiff can point to similarly situated worker treated more favorably,
claim still fails because he cannot show he was legitimately meeting performance expectations at
the time of termination); see also Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir. 2004)
(“The fact that [plaintiff] may have met expectations in the past is irrelevant; she must show that
she was meeting expectations at the time of her termination.”).
Truesdell testified that he did not feel he was being treated unfairly by Acred or anyone
else when laid off in 2010. Following his September 2010 layoff, Truesdell never called FPN to
inquire about work. Pursuant to industry standard, Truesdell should have called FPN if he were
truly interested in rehire. He admits that he never asked for his job back.
Truesdell failed to show by the preponderance of the evidence that he would have
continued working for FPN through 2009 and 2010 had he been white and everything else
remained the same.
iii.

Plaintiff Johnny Tejada

Truesdell claims FPN laid him off and failed to transfer or rehire him in 2010 because of
his race. Tejada worked for UFP steadily for two years before being hired by FPN. Tejada
worked on the Powell School job, which FPN took over in June 2010. Acred hired Tejada at the
general contractor’s recommendation and assigned Tejada as a journeyman fitter and white fitter
Eric Woolwine as foreman on the Powell School project. When the job ended two to three
months later in September 2010, Tejada was not transferred and was laid off for “lack of work.”
Woolwine was not laid off or transferred at that time because he was foreman and was required
to stay on the job longer.
Tejada identified Woolwine as being similarly situated but he was not. FPN hired and
employed Woolwine as a foreman fitter; Tejada never worked for FPN as a foreman. See, e.g.,
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Ponticiello v. Aramark Unif. & Career Apparel Servs., Inc., No. 05 C 1137, 2006 WL 2699416,
at *7 (N.D. Ill. Sept. 19, 2006) (“Plaintiff and [her alleged comparator] were not similarly
situated since they held different job positions with different responsibilities.”); Eles v. BarberColeman Co., No. 93 C 7580, 1996 WL 5316, at *3 (N.D. Ill. Jan. 4, 1996) (finding that
employee holding management or supervisory responsibilities not comparable to an employee
who does not). Also, Woolwine’s skill level exceeds Tejada’s. Woolwine was more productive
than Tejada and had a reputation for great job performance and was even nicknamed “Eric
Awesome.”
Tejada claimed he should have been transferred to a Walmart job stating at the time but
in fact no such job existed. Tejada also claims he should have been transferred to the Ogden
Elementary job starting in the fall of 2010. This job did exist. However, FPN ultimately
subcontracted the labor to another company.
Tejada was not available or eligible for rehire following his layoff. Tejada changed his
number without notifying FPN so if FPN had wanted to reach out about a possible job
opportunity it would not have been able to make contact with him. Tejada contacted FPN only
once and when he did not was not to inquire about work but to leave a paper trail in anticipation
of this case. Tejada was not eligible for hire as a union member not in good standing as of
January 2011. Finally, in 2011, Tejada moved three hours away to Battle Creek, Michigan with
no intention of working in Chicago.
Tejada failed to show by the preponderance of the evidence that he would have continued
working for FPN in 2010 had he been white and everything else remained the same.

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C. Segregation Theory of Liability
Plaintiffs’ “pigeonholing” theory—that beginning in 2010 FPN segregated African
American fitters by employing them only on jobs for which there was a minority hiring
requirement or incentive or that were located in minority-majority areas—does not provide an
independent basis for liability in this case. Section 2000e-2(a)(2) provides:
It shall be an unlawful employment practice for an employer . . .
(2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s race, color, religion,
sex, or national origin.
To prevail on a discrimination claim based on a segregation theory pursuant to Section 2000e2(a)(2), Plaintiffs must show they suffered an adverse employment action due to the alleged
segregation. See Chaib v. Indiana, 744 F.3d 974, 982 (7th Cir. 2014), overruled on other
grounds by Ortiz, 834 F.3d 760 (7th Cir. 2016) (“The requirement that a plaintiff show she
suffered an adverse employment action as a result of her employer’s alleged discrimination is an
element of any Title VII claim.”) (emphasis added); see also Henry v. Milwaukee Cty., 539 F.3d
573, 585-86 (7th Cir. 2008) (applying adverse action analysis to a Section 2000e-2(a)(2)
segregation claim); E.E.O.C. v. DHL Exp. (USA), Inc., No. 10 C 6139, 2012 WL 5381219, at *2
(N.D. Ill. Oct. 31, 2012) (“Under either a discrimination or segregation theory, the [plaintiff]
must prove that each claimant was subjected to an adverse employment action, which had an
effect on the claimant.”).
As an initial matter, FPN contends that Plaintiffs failed to prove segregation occurred
because Dr. Bridges failed to rule out chance as a potential explanation for the concentration of
African American fitters in a small subset of jobs. FPN ignores the index of dissimilarity test Dr.
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Bridges conducted showing that the distribution of hours among African American and white
fitters at FPN occurred only 3% of the time in 10,000 simulations of random, nondiscriminatory
assignment. Additionally, Plaintiffs’ anecdotal evidence corroborated Dr. Bridges’ observations
as they each worked primarily if not completely on jobs in majority-minority areas or that
required minority labor in 2010.

Regardless, Plaintiffs’ segregation theory fails as an

independent theory of liability because Plaintiffs failed to show any adverse employment action
due to the segregation.
“An adverse employment action is ‘some quantitative or qualitative change in the terms
or conditions of [the plaintiff’s] employment that is more than a mere subjective
preference.’” Madlock v. WEC Energy Grp., Inc., No. 17-1278, 2018 WL 1312260, at *3 (7th
Cir. Mar. 14, 2018) (quoting Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir.
2003)). It must “materially alter the terms and conditions of employment.” Stutler v. Ill. Dep’t.
of Corrs., 263 F.3d 698, 703 (7th Cir. 2001). “[N]ot everything that makes an employee
unhappy is an actionable adverse action.” Madlock, 2018 WL 1312260, at *3 (quoting Nichols v.
S. Ill. Univ.-Edwardsville, 510 F.3d 772, 780 (7th Cir. 2007)).

The Seventh Circuit has

articulated three categories of actionable adverse employment actions:
(1) cases in which the employee’s compensation, fringe benefits, or other
financial terms of employment are diminished, including termination;
(2) cases in which a nominally lateral transfer with no change in financial terms
significantly reduces the employee’s career prospects by preventing her from
using her skills and experience, so that the skills are likely to atrophy and her
career is likely to be stunted; and
(3) cases in which the employee is not moved to a different job or the skill
requirements of her present job altered, but the conditions in which she
works are changed in a way that subjects her to a humiliating, degrading,
unsafe, unhealthful, or otherwise significantly negative alteration in her
workplace environment.
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Nichols, 510 F.3d at 780 (citing O’Neal v. City of Chi., 392 F.3d 909, 911 (7th Cir.2004)).
The Seventh Circuit recently elaborated on the adverse employment action requirement
in the context of a segregation claim under Section 2000e-2(a)(2). In E.E.O.C. v. Autozone, Inc.,
the EEOC brought an action against an employer for allegedly transferring a black salesperson
from a store that served a largely Hispanic clientele in order to make it a “predominantly
Hispanic” store in violation of Section 20003-2(a)(2). 860 F.3d 564, 564 (7th Cir. 2017). The
purely lateral transfer required no reduction in pay, benefits or job responsibilities and was
actually closer to the employee’s home and the employee even admitted that he did not mind
being transferred. Id. at 567. The district court found that the transfer did not adversely affect
the employee’s employment status and the Seventh Circuit affirmed. Id. at 568.
On appeal, the EEOC presented a “novel” argument that “any action to limit, segregate,
or classify employees because of race automatically violates § 2000e-2(a)(2)” so “plaintiffs need
not “produce evidence that the challenged action deprived or tended to deprive him of
employment opportunities or otherwise adversely affected his employment status” as those facts
are “inherent in the act.” Id. (emphasis in original). The court rejected this argument as ignoring
the plain text of the statute. Id. at 569. It noted, however, that subsection (a)(2) is broader
subsection (a)(1)” and accordingly, held that the lack of an adverse employment action does not
defeat a suit under Section 2000e-(2)(a)(2) but a plaintiff must at least show the employment
action tended to deprive him of some job opportunity. Id.6

6

Plaintiffs cite to Kyles v. J.K. Guardian Security Services, Inc., for the notion that “[w]hen a job applicant is not
considered for a job simply because she is African-American, she has been limited, segregated or classified in a way
that would tend to deprive not only her, but any other individual who happens to be a person of color, of
employment opportunities.” (Dkt. No. 319 at ¶ 103 (citing Kyles, 222 F.3d 289, 298 (7th Cir. 2000)). In Kyles, two
black job testers posing as job applicants sued an employer under Section 2000e-2(a)(2) for hiring the white tester
instead of them. Id. at 292-94. The district court held that the testers had no standing as hypothetical job applicants.
The Seventh Circuit reversed, finding that humiliation and embarrassment are cognizable harms under Title VII and,

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The crux of Plaintiffs’ argument is that beginning in 2010, FPN considered white fitters
for all of its jobs but considered African American fitters for only a subset of those jobs and that
such practice tended to and did deprive plaintiffs of employment opportunities. In other words,
Plaintiffs competed for a subset of all FPN jobs while white fitters competed for every job. To
succeed on this theory, Plaintiffs had to show that in considering African Americans only for this
subset of jobs, FPN’s practice at least tended to diminish their financial compensation or
benefits, to reduce their career prospects by preventing the use of certain skills or experience, or
to alter job their conditions in a way that was humiliating or degrading.
Plaintiffs failed to show any detrimental economic effect to the segregation practice.
There were no financial incentives to working in white areas or on jobs that did not require
minority labor. All fitters were paid according to the wage rates set by the Local 281 CBA.
Plaintiffs also did not show that they would have worked more hours if they had been considered
for all jobs.

Nothing suggests jobs in majority-minority areas or with minority hiring

requirements were less frequent or were smaller jobs requiring less hours. In fact, it is entirely
possible African American fitters benefited from being considered only for this subset of jobs if
these jobs were, on average, larger jobs that lasted longer and required more hours. The point is,
we simply do not know because Plaintiffs did not show this at trial. Plaintiffs rely on Dr.
Bridges’ analyses showing that work and earnings for African American fitters at FPN declined
over time but nothing ties this trend to segregation. In fact, Dr. Bridges failed to account for

therefore, the testers alleged an injury sufficient to support standing. Id. at 300. In E.E.O.C. v. Autozone, the
Seventh Circuit stated that “nothing in [Kyles] relieves a claimant in a § 2000e-2(a)(2) suit of the obligation to prove
that the challenged job action deprived him of employment opportunities or otherwise adversely affected his
employment status.” Id. at 569.

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chance or any other alternative explanation including, as would be relevant here, the share of
total FPN jobs that fell within the claimed subset.
Plaintiffs fail to show the segregation otherwise significantly altered their work
experience. Plaintiffs appropriately admit that working jobs in minority areas and with minority
requirements is not in itself harmful. See, e.g., Anzaldua v. Chicago Transit Auth., No. 02 C
2902, 2002 WL 31557622, at *3 (N.D. Ill. Nov. 15, 2002) (rejecting argument that a lateral
transfer to a “predominantly black area” was an adverse employment action as “contain[ing]
precisely the stereotypical notions and racist attitude that [plaintiff] herself complaints of”). In
some cases, working on one of these jobs meant the fitter was closer to home and had a shorter
drive to work each day. Jobs in majority-minority areas or with minority hiring requirements did
not inherently require different skill sets. Plaintiffs served the same role as either a journeyman
or foreman that they would have served and did serve on jobs in white areas. See Rhodes v. Ill.
Dep’t of Transp., 359 F.3d 498, 505 (7th Cir. 2004) (an assignment consistent with normal job
duties cannot be an adverse action under Title VII), overruled on other grounds by Ortiz, 834
F.3d at 765-766; Lancaster-Williams v. Pods Enterprises, Inc., No. 08 C 7144, 2010 WL
2382402, at *9 (N.D. Ill. June 10, 2010) (“The routes assigned to [plaintiff] were consistent with
his job duties as a [] driver; that he may have preferred different assignments does not give rise
to a Title VII discrimination claim.”). Nothing about the jobs African Americans were assigned
to tended to stunt career development or alter work conditions in such a way as to subject
African American fitters to a humiliating, degrading, or unsafe environment. Plaintiffs failed to
prove any detrimental effect of being segregated to only a subset of jobs at FPN and, therefore,
failed to prove a claim under Section 2000e-2(a)(2).

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THE COURT’S CONCLUSIONS BASED ON EVIDENCE AND THE LAW
In short, the Court must focus on “the sole question that matters: Whether a reasonable
juror could conclude that [the plaintiff] would have kept his job if he had a different [race], and
everything else had remained the same.” Ortiz. 834 F.3d at 764. After significant summary
judgment briefing and rulings, numerous Daubert hearings, twelve days of trial, and hundreds of
exhibits and charts, the Court concludes that there are simply too many other factors that could
have influenced the placement decisions and therefore Plaintiffs have failed to meet their burden
of proof. The other variables that have not been eliminated include the following:
First, the unique nature of the pipefitting industry has not fully been accounted for in any
of the expert analyses or attorney conclusions. Pipefitters work when there are projects that
Defendant has bid on, won, and staffed. This means that when fitters are put on a job, they
generally stay on that job until completion. The job could last months and even years. While a
fitter is on a particular job, he is not available to be placed on another job. Also, when a fitter
finishes a job, there may not be another job for him if there are no new jobs opening at that time.
As such, fitters frequently are laid off and are then available to work for other companies if jobs
are available or to seek unemployment or to seek other types of employment. The testimony at
trial showed that all of these variations occurred with Plaintiffs. The fallacy of the statistical
reports presented by Plaintiffs is that every pipefitter is deemed to be available for every job
every time. This is not so. As such, Plaintiffs have failed to show that they were not put on jobs
based on their race but rather due to the availability of work. This was exacerbated by the
testimony that the pipefitting business suffered during the recession and lost numerous jobs
making available positions more scarce.

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Second, the role of the union has not been fully addressed in the placement of a pipefitter
on a given job. These are union positions and the union supervisors influence the selection of
whether a particular fitter can be placed on a job based on his rank and experience within the
union. Therefore, suggesting that all pipefitters are available for all jobs has again failed to
factor in the role of the union in selecting the appropriate fitter for each job. The rank and
expertise of a particular fitter within the Union is based first on the Union’s evaluation of a fitter.
The Defendant then selects a fitter based on the Union’s data.
Third, the Plaintiffs themselves testified that they were not always available for fitting
jobs. In fact, some took a hiatus from pipefitting and explored other areas of employment, others
were on different positions, and some were with other companies. It is important to note that a
fitter must notify the Defendant that he wants to work and is available for a particular job if it
opens. If he fails to do so, he will not be considered for the job. There were instances in the
testimony where fitters admitted that they had not notified Defendants that they were available
and wanted work. Again this is one of the significant variables not taken into account in the
statistical evidence.
Fourth, although it is irrelevant to the issue of circumstantial evidence of discrimination,
many fitters had excellent if not collegial working relationships with their supervisors and were
not directly treated in a discriminatory manner. In fact, on more than one occasion, Plaintiff
Truesdell was placed as a supervisor on a position and even was hired back to supervise a job
after he had been laid off. Both direct actions weigh in favor of finding that race had little to do
with job placement since they were actually hired over others who were not African American.
Fifth, although there were communications between Defendant managers about the
irritation of dealing with minority hiring quotas for different projects, which would most
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certainly reflect a potential discriminatory intent if the Plaintiffs were not put on projects, in
truth, many of the Plaintiffs were put on projects, and even as supervisors on projects, when
there was no minority hiring quota for that particular project.
Sixth, although Plaintiffs’ attorneys have argued that placement in minority
neighborhoods were projects that were less valuable to the Plaintiffs because they were
minorities and were not chosen to be placed on larger projects where the location was more
diverse (such as DePaul), the evidence has failed to support that conclusion. The fitters are paid
a wage based on their union rank and experience, and therefore it cannot be argued that a job in
one area is less valuable than one in another since the same wages would be paid. What can be
argued is that a job like DePaul, which is not in a minority neighborhood is more appealing
because it will last longer and therefore gives job stability. However, the testimony at trial did
not support that Plaintiffs solely wanted these types of jobs and did not address whether certain
Plaintiffs may actually prefer positions with less travel. More importantly, this issue circles back
to the larger problem that was not addressed and that is whether African American pipefitters
were available to be placed on these projects that were not in minority neighborhoods. Again,
the statistical evidence was overly broad and did not take into account the numerous variables
just mentioned above.
Seventh, although the testimony of the discriminatory emails was strong and damning as
to those who sent and received them, Plaintiffs have failed to link those communications to the
decision makers in this case. The expert testimony was not only fascinating but powerful.
Recognizing that when a recipient of a discriminatory email does not respond to it by rejecting it
or passes it on to another can be implicit validation of that behavior is real and valid. Creating
that environment that accepts the denigration of a race, culture, or gender can most definitely
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send a message to those making hiring and firing decisions that this is how management wants
these decisions to be made. Without negating the validity of that testimony, Plaintiffs have
simply not shown the link between the decision makers in this case and those communications.
Finally, all of these variables, if addressed, coupled with an environment of
discriminatory tone and environment in upper management would have resulted in a very
different case. Imagine, for example, if the evidence showed that African American pipefitters
were only given small jobs in minority neighborhoods, never placed on larger projects, never
rehired to be placed on open projects, and never hired for available work even though they were
available and had expressed a willingness to work.

Then, it would hardly be difficult to

understand that the climate of discriminatory tone was sending a message to the supervisors who
were making the placement positions to not place African American fitters in those positions.
That is the case that Plaintiffs have attempted to show and that would be a case that the Court
does not doubt could exist. Here, however, Plaintiffs have failed to show this and have failed to
meet their burden of proof in spite of having significant time, briefing, testimony, and data to do
so.
CONCLUSION
The Court concludes that Plaintiffs Martin, Truesdell and Tejada have not proven that
FPN laid off, failed to transfer or failed to rehire them because of their race.

____________________________________

Hon, Virginia M. Kendall
United States District Judge
Date: March 30, 2018
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