Austin v. City of Chicago
Filing
75
MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 3/27/2018. Mailed notice(gel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KEVIN AUSTIN,
Plaintiff,
Case No. 14-cv-9823
v.
Judge John Robert Blakey
CITY OF CHICAGO,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Kevin Austin worked for Defendant City of Chicago intermittently
until his most recent termination in July 2014. Plaintiff alleges that Defendant
fired him because of his race and in retaliation for protected activity, and brings
claims for discrimination and retaliation under Title VII of the Civil Rights Act, 42
U.S.C. § 2000e et seq. [26]. Defendant moved for summary judgment. [66]. For the
reasons explained below, this Court grants Defendant’s motion.
I.
Background
A.
Local Rule 56.1 and Evidentiary Rules
The following facts come from Defendant’s Local Rule 56.1 statement of
material facts [65], and Plaintiff’s Local Rule 56.1 statement of additional facts
[69]. 1
Local Rule 56.1 requires the non-movant to file a concise response to each of
In this discussion, “DSOF” refers to Defendant’s statement of undisputed material facts [65], and
“PSAF” refers to Plaintiff’s statement of additional material facts [69]. “R. DSOF” refers to
Plaintiff’s responses to Defendant’s statement of facts, [69]. References to additional filings are by
docket entry number.
1
1
the movant’s statements using “specific references” to the record to support any
denial of the movant’s facts. See Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill.
2000). General denials are “insufficient” to rebut a statement of fact and may be
disregarded. Id. At summary judgment, courts “will not consider any additional
facts” included in a party’s response, but rely only upon those contained in that
party’s statement of facts and statement of additional facts. LaSalvia v. City of
Evanston, 806 F. Supp. 2d 1043, 1045 (N.D. Ill. 2011) (citing Cichon v. Exelon
Generation Co., L.L.C., 401 F.3d 803, 809 (7th Cir. 2005)). Finally, if materials cited
to support a denial fail to “clearly create a genuine dispute over the movant’s
allegedly undisputed fact, the nonmovant should provide an explanation.” Malec,
191 F.R.D. at 584. If a party inadequately responds to an opponent’s Rule 56.1
statement, the court may deem the opponent’s factual allegations admitted. Id.
Applying these rules, this Court disregards Plaintiff’s responses to
paragraphs 10, 14, 28, 30, 32–35, 41, 43, 44, 52, 54, 60, 62, 63–65, and 71–74 of
Defendant’s statement of facts. In each of these responses, Plaintiff either fails to
cite specific record evidence to justify his denial or cites irrelevant facts without
providing an explanation.
See R. DSOF.
This Court deems Defendant’s
corresponding statements of fact admitted. See Malec, 191 F.R.D. at 584.
B.
Plaintiff’s Claim
Defendant first hired Plaintiff, an African-American man, in July 1998 as a
laborer in the Department of Streets and Sanitation (DSS). DSOF ¶¶ 1, 28. In
2006, Defendant fired Plaintiff and placed him on the Ineligible for Rehire (IFR)
2
list. Id. ¶¶ 27–29. Defendant hired Plaintiff for the second time in 2012 and fired
him again in 2014. Id. ¶¶ 36, 47. Plaintiff claims that Defendant’s stated reason
for his second firing—that Defendant became aware of Plaintiff’s IFR status—was
pretextual and that he was actually fired because of his race and in retaliation for
the internal complaints of discrimination he made to Defendant. See id. ¶ 7; [26].
C.
Plaintiff’s First Termination
Defendant first fired Plaintiff in November 2006, following a report from the
Chicago Office of the Inspector General (OIG) about Plaintiff’s misconduct. Id. ¶¶
28, 29. The OIG found that Plaintiff possessed a stolen U-Haul truck in 2005, and
did not disclose a previous conviction for a different crime on his original
employment application in 1998. Id. These acts violated Personnel Rule XVIII,
Section 1, paragraphs 15 and 50, which prohibit any illegal acts by City employees,
and Personnel Rule XVII, Section 1, paragraph 6, which prohibits failing “to
disclose any information requested or providing a false or misleading answer” in
any “document or application provided by the City.” See [65-3] at 51, 55; [65-5] at
125. Plaintiff’s application also asked, without qualification: “Have you ever been
convicted of any crime?” See [65-5] at 124. The OIG recommended that Plaintiff be
terminated and “never be rehired.” DSOF ¶ 28; [65-5] at 125.
Plaintiff contested his discharge. DSOF ¶ 30. In February 2007, the City’s
Personnel Board held a full evidentiary hearing into Plaintiff’s termination, at
which Plaintiff was represented by counsel and presented evidence. Id. The Board
determined that Plaintiff had, in fact, possessed a stolen U-Haul, in violation of
3
criminal statutes and the City’s personnel rules, and affirmed Plaintiff’s
termination on that basis. Id.; [65-7] at 186–96.
In August 2007, about nine months after his first firing, Plaintiff received a
letter from Christopher Owen, the City’s Deputy Commissioner for the Department
of Human Resources (DHR), informing Plaintiff that his termination was “for
cause,” making him ineligible for future employment with the City. DSOF ¶ 32;
[65-5] at 29. When Plaintiff inquired about his eligibility for rehire in 2010, DHR
Recruiting Analyst Christina Batorski informed Plaintiff that he was “ineligible for
re-employment with the City of Chicago permanently.” See DSOF ¶ 34; [65-7] at
184.
DHR maintains a database of its employee records (the CHIPPS database).
DSOF ¶ 13.
The CHIPPS database listed Plaintiff’s race, as did his criminal
background check form in 2012. R. DSOF ¶ 53. Since 2011, DHR has included
information in the CHIPPS system about employees who, due to the circumstances
of their resignation or discharge from City employment, are coded as IFR, either
indefinitely or for a set period. [65-6] at 26–31, 63–64; [65-7] at 21–22. Before 2011,
DHR maintained the IFR information in an Excel spreadsheet. [65-7] at 22. To
place an employee on the IFR list, Owen would “pull the information related to the
termination” and “write up a quick memo” to the DHR commissioner, who at the
time of Plaintiff’s 2006 discharge was Jackie King. [65-5] at 31. Owen wrote such a
memo to King after Plaintiff’s termination, which King approved before Defendant
sent the August 2007 letter to Plaintiff. DSOF ¶ 32.
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D.
Plaintiff’s Second Period of Employment
DSS rehired Plaintiff in September 2012, first as a seasonal pool motor truck
driver (pool MTD) and then as a full-time pool MTD from April 2013 through July
2014. DSOF ¶¶ 36, 39. Plaintiff claims that as of his second hiring, Batorski—still
working for DHR—knew his race. R. DSOF ¶ 53. As a pool MTD, Plaintiff plowed
snow in winter and drove garbage trucks. DSOF ¶ 38. Pool MTDs normally met at
a central location before going out to pick up other garbage truck workers. [65-2] at
4, 24.
Plaintiff claims that Defendant often assigned him to start at different
garages in the morning, while allowing white employees of similar seniority to
report to the same location each day. Id. at 7. In his deposition, Plaintiff described
receiving his assignments from Steve Tate, his supervisor, each night before the
next day’s shift. Id. at 10. Plaintiff believed the assignments originated from City
Hall. Id. Accordingly, Plaintiff contacted Batorksi, now Deputy Commissioner of
DHR, to complain, believing that Tate had “no power” over his assignments. Id.
E.
Alleged Retaliation
Plaintiff alleges that Defendant decided to terminate him in retaliation for
protected activity. DSOF ¶ 55. Specifically, Plaintiff engaged in protected activity
when he complained to Batorski about alleged racial discrimination. See [65-2] at 9.
First, Plaintiff claims that he personally delivered a written complaint regarding
his assignments to Batorski. Id.; DSOF ¶¶ 26, 62. The record remains unclear as
to the timeline of Plaintiff’s interactions with Batorski, see, e.g., [65-2] at 7–10, but
Plaintiff says that he spoke to Batorski after receiving an assignment to begin a
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shift at O’Hare International Airport in December 2013, a few months after he was
rehired, id. at 9. Plaintiff felt his assignments were discriminatory because they
sent him to locations all around Chicago, while white employees reported to the
same starting location every day. See id. at 7, 9. According to Plaintiff, after their
conversation, Batorski told Plaintiff that he could report to a central location
instead of going to O’Hare. Id. at 10. Nothing in the record shows that Defendant
took any adverse action against Plaintiff from December 2013 until his eventual
termination in July 2014.
In June 2014, approximately one month before Plaintiff’s discharge, DHR
received a Freedom of Information Act (FOIA) request from the Chicago Sun-Times
for work histories of approximately 13 people, including Plaintiff.
DSOF ¶ 40.
Upon conducting a search for these work histories, DHR realized that Plaintiff was
on the IFR list, yet working for the City at DSS. Id. Owen then reviewed Plaintiff’s
work history, underlying termination paperwork, and the 2006 OIG report to make
sure Plaintiff belonged on the IFR list. Id. ¶ 44.
At this point, Owen requested a report comparing employee work histories to
the IFR list to determine if any other current City employees had been coded IFR.
Id. ¶ 45. The report identified four such employees, including Plaintiff. Id. The
other three were Arthur Jones—another pool MTD with DSS—and two City Council
employees: Thomas Sadzak and Jesse Smart. Id.
Plaintiff suggests that Owen did not adequately inquire into the validity of
Plaintiff’s status on the IFR list, alleging that Owen did not recall what particular
6
termination paperwork he reviewed and could not remember if he reviewed the OIG
report. R. DSOF ¶ 44. But Plaintiff does not dispute that Owen reviewed Plaintiff’s
work history, which contained a code flagging him as ineligible for rehire, or that
Plaintiff’s termination paperwork contained the OIG report, which provided factual
support for his termination. See [65-6] at 98, 101, 102.
In early July 2014, a few weeks before Defendant fired Plaintiff, Plaintiff
called Batorski to complain about being sent to different garages, unlike white
employees of similar seniority. DSOF ¶ 62; PSAF ¶ 16. Batorski does not recall
Plaintiff complaining that he was being sent to other garages, or that white
employees did not receive similar assignments. [65-7] at 119.
On July 11, Carolyn Mulaney, DHR’s FOIA Officer, sent Plaintiff a letter to
inform him that “DHR received an Illinois FOIA request for [his] disciplinary
history,” and that his work history (including his previous discharge) would be
provided to the requesting party. DSOF ¶ 42.
Plaintiff
claims
that
racial
discrimination
prompted
Defendant’s
investigation into his disciplinary file, because his initial discipline and status on
the IFR list arose from mere allegations of misconduct for which he was never
criminally prosecuted. Id. ¶ 51; R. DSOF ¶ 51; PSAF ¶ 1; [65-2] at 51. Defendant
states that the Sun-Times’ FOIA request prompted the investigation into Plaintiff’s
disciplinary file. DSOF ¶ 40. The parties do not dispute the existence or timing of
the Sun-Times’ FOIA request. See R. DSOF ¶ 40. DHR Deputy Commissioner
Owen testified that when DHR receives a FOIA request, the Personnel Record
7
Review Act mandates that DHR send a letter to the employee to inform him of the
request. DSOF ¶ 14; see also 820 ILCS 40/7, 40/11. This rule is the reason Mulaney
sent Plaintiff the July 11 letter. See DSOF ¶ 14.
About two weeks before Plaintiff’s termination and after Plaintiff received
Mulaney’s letter, Plaintiff called Batorski again to ask why he had received the
letter. [65-2] at 7, 11. Plaintiff wanted to know why Sadzak, the City Council
employee whose status on the IFR list was also revealed by the FOIA request, did
not get a similar letter. Id. at 37. Batorski explained that the Personnel Record
Review Act required the letter notifying him of the FOIA request. DSOF ¶ 59.
Batorski told Plaintiff she could not speak to him about other employees and
referred him to the OIG if he wanted to make a formal complaint. Id. ¶ 60; [65-7] at
123. Batorski does not recall Plaintiff mentioning Sadzak’s race in this phone call
and says that she did not know Sadzak’s race. DSOF ¶ 60.
F.
Plaintiff’s Second Termination
Once DHR identified the employees on the IFR list currently employed by the
City, Owen, Batorski, and DHR Commissioner Soo Choi recommended to DSS
Commissioner Charles Williams that he discharge Plaintiff and Jones. DSOF ¶ 46.
Owen knew Plaintiff’s race when he recommended Plaintiff’s termination, but
states that race did not factor into his decision. [65-5] at 105–07. On July 24, 2014,
Williams informed Plaintiff that he was terminated, effective at the close of
business that day, and that he was ineligible for rehire. DSOF ¶ 47.
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Defendant states that Plaintiff’s termination resulted from an administrative
oversight of his previous placement on the IFR list. Id. ¶ 43. According to Owen,
Plaintiff’s rehiring was a mistake: Defendant simply failed to notice Plaintiff’s
status on the IFR list. Id.; [65-6] at 131. Plaintiff disputes this characterization,
arguing that Owen was not involved in Plaintiff’s rehiring in 2012, so his account is
speculative. R. DSOF ¶ 43. Owen admits that he did not participate in Plaintiff’s
rehiring. [65-6] at 131. As DHR Deputy Commissioner since 2011, however, Owen
testified based upon his knowledge of the City’s past and present hiring practices,
including for the period of Plaintiff’s second hiring. See id. at 6. Specifically, in his
deposition, Owen described a shift from manual to electronic screening of
employment applications to account for Defendant’s failure to notice Plaintiff’s
inclusion on the IFR list. See id. at 129–31. In any event, Plaintiff admits that,
after his disciplinary history came to light in 2014, Owen reviewed DHR’s files to
confirm that Plaintiff was on the IFR list; Plaintiff also admits that he was, in fact,
on the IFR list at this time. See DSOF ¶¶ 40–45; R. DSOF ¶¶ 44, 45.
Plaintiff also claims that DSS Commissioner Williams lacked the discretion
to fire Plaintiff, and suggests that the decision was made fully by Owen, Batorski,
and Choi. R. DSOF ¶ 46. In support, Plaintiff cites a July 31 memo from Batorski
to another DHR Deputy Commissioner, stating that DHR “required” DSS to
terminate Plaintiff and Jones (as opposed to merely recommending termination).
[69-1] at 9. Defendant asserts that the final decision to terminate Plaintiff rested
with the head of the executive department that employed him; namely, Williams.
9
See [65-4] ¶¶ 1, 4, 7. In a sworn declaration, Williams stated that as the head of
DSS, he is responsible for hiring and firing employees. Id. ¶ 1.
Williams also stated that DHR recommended that Plaintiff be terminated
because he was ineligible to hold City employment. Id. ¶ 5. Williams described
himself as the final decision-maker with respect to Plaintiff’s discharge from DSS in
July 2014. Id. ¶ 7. Williams did not know Plaintiff’s race when he discharged
Plaintiff in July 2014. Id. ¶ 8. Williams also terminated Jones (the other DSS
employee on the IFR list) the same day as Plaintiff. DSOF ¶ 49. Both Williams and
Jones are African-American. See [65-4] ¶ 3; [67] at 16.
The entirety of Plaintiff’s protected activity prior to his termination consists
of his alleged complaints to Batorski upon receiving notice of the FOIA request, and
his complaints to Batorski and Tate about being sent to different yards or garages.
See R. DSOF ¶ 64. Williams states that when he fired Plaintiff, he did not know of
Plaintiff’s complaints. [65-4] at 2, ¶ 9. Owen also states that he was unaware that
Plaintiff made any discrimination claims before his discharge. [65-5] at 81.
G.
Similarly Situated Employees
In addition to Plaintiff, Defendant’s response to the Sun-Times’ FOIA request
turned up the names of three other government employees on the IFR list: Jones,
Sadzak, and Smart. DSOF ¶ 45. Sadzak and Smart had been previously employed
by DSS and were later hired by the City Council as staff assistants. Id. ¶¶ 71, 73.
DSS is an “executive department” of Chicago, meaning a department that forms
part of the City’s executive branch. See id. ¶ 9. The City Council is, obviously, not
10
part of the City’s executive branch. See id. ¶¶ 8, 71; City of Chicago, City Council,
Your Ward & Alderman, https://www.cityofchicago.org/city/en/about/council.html
(last visited Mar. 22, 2018). 2
Plaintiff claims that Sadzak, who is white, received more favorable treatment
because Defendant did not terminate him despite his presence on the IFR list. See
DSOF ¶ 51. Plaintiff claims that he heard from other City employees that Sadzak
never received a letter about the FOIA investigation. Id. ¶ 57. Sadzak has not been
employed by any executive department of the City of Chicago since he resigned in
lieu of termination from DSS in October 2005. Id. ¶ 71. In November 2008, Sadzak
worked for a member of the City Council as a legislative aide, and in July 2010, he
became a staff assistant to a city alderman. Id. ¶¶ 8, 71. Sadzak was fired from
that position in September 2014 and has not been employed by the City Council or
by an executive department of the City since that time. Id. ¶ 72.
Smart has not worked in any executive department of the City since he
resigned in lieu of discharge from DSS around March 2007. Id. ¶ 73. After his
resignation, Smart worked for a member of the City Council as a staff assistant. Id.
Smart is African-American. Id. ¶ 67.
In a footnote to his brief, Plaintiff also mentions John Ardelean, a white
police officer whom the Chicago Police Board fired in March 2012 after finding that
he was intoxicated when involved in an off-duty car crash that killed two civilians.
This Court may take “judicial notice of public records and government documents, including those
available from reliable sources on the Internet.” Sleeter v. Actavis Totowa, LLC, No. 10-653-GPM,
2010 WL 3781261, at *2 n.1 (S.D. Ill. Sept. 21, 2010) (citing Laborers’ Pension Fund v. Blackmore
Sewer Constr., Inc., 298 F.3d 600, 607 (7th Cir. 2002)).
2
11
See [68] at 5 n.6; PSAF ¶ 6. Plaintiff alleges that Ardelean was placed in the “oneyear” section of the IFR list by DHR (meaning that Ardelean was only temporarily
ineligible for rehire), but offers no evidence to support this claim, other than to show
that Ardelean was hired by the City’s water management department around July
2014. PSAF ¶ 6. In any event, despite Plaintiff’s cursory reference to Ardelean, see
[68] at 5, Plaintiff’s counsel confirmed in open court on March 21, 2018, that Sadzak
and Smart are the only proposed comparators offered at this point in the case.
H.
This Case
In September 2014, Plaintiff filed an Equal Employment Opportunity
Commission (EEOC) charge, alleging that his 2014 termination constituted racial
discrimination. DSOF ¶ 4. In October, Plaintiff filed another charge alleging that
Defendant fired him because of his complaints of discrimination. Id. ¶ 6. Plaintiff
received notice of his right to sue and initiated this action in December 2014. [1];
[26] at 2, 9, 14. Plaintiff amended his complaint in October 2015, alleging unlawful
discrimination and retaliation in violation of Title VII. [26]. This opinion addresses
Defendant’s motion for summary judgment on both counts. [66].
II.
Legal Standard
Summary judgment is proper where there is “no dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine dispute as to any material fact exists if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
12
The party seeking summary
judgment has the burden of establishing that there is no genuine dispute as to any
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In determining whether a genuine issue of material fact exists, this Court
must construe all facts and reasonable inferences in the light most favorable to the
non-moving party. See CTL ex rel. Trebatoski v. Ashland Sch. Dist., 743 F.3d 524,
528 (7th Cir. 2014).
The non-moving party has the burden of identifying the
evidence creating an issue of fact. Harney v. Speedway SuperAmerica, LLC, 526
F.3d 1099, 1104 (7th Cir. 2008).
To satisfy that burden, the non-moving party
“must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). Thus, a mere “scintilla of evidence” supporting the non-movant’s
position does not suffice; “there must be evidence on which the jury could
reasonably find” for the non-moving party. Anderson, 477 U.S. at 252.
III.
Analysis
Plaintiff claims that Defendant terminated him because of his race and in
retaliation for protected activity in violation of Title VII. [26]. Title VII prohibits
employers from discriminating against employees on the basis of “race, color,
religion, sex or national origin.” 42 U.S.C. § 2000e-2(a); see also Lewis v. City of
Chicago, 496 F.3d 645, 650 (7th Cir. 2007). Title VII also bars employers from
retaliating against employees who engage in protected activity by exercising their
Title VII rights. See Poullard v. McDonald, 829 F.3d 844, 855–56 (7th Cir. 2016);
see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 53 (2006).
13
In the Seventh Circuit, courts addressing Title VII claims consider all
relevant evidence “as a whole,” without separating “direct” and “indirect” evidence.
Ortiz v. Werner Enters., 834 F.3d 760, 763 (2016). Courts must ask “whether the
evidence would permit a reasonable factfinder to conclude that the plaintiff's race,
ethnicity, sex, religion, or other proscribed factor caused the discharge or other
adverse employment action.” Id. at 765.
The Seventh Circuit’s decision in Ortiz, however, did not alter the burdenshifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Ortiz, 834 F.3d at 766. As a result, courts addressing discrimination
claims now conduct the McDonnell Douglas analysis if the parties present
arguments “in those terms,” but also assess the plaintiff’s evidence “cumulatively”
to determine “whether it permits a reasonable factfinder” to conclude that the
challenged employment action was attributable to a proscribed factor. David v. Bd.
of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017). Because the
parties employ McDonnell Douglas, this Court first addresses Plaintiff’s claims in
those terms and then assesses the evidence under Ortiz’s holistic approach. See id.
A.
Count I: Race Discrimination
1.
McDonnell Douglas Analysis
Plaintiff claims that Defendant terminated him in 2014 because of his race. 3
[26] at 2. Plaintiff alleges that Defendant’s proffered reasons for his termination
Plaintiff appears to suggest in his brief that his claim encompasses allegations of discrimination
during his employment, in addition to his allegedly discriminatory termination. See [68] at 5. But
Plaintiff’s complaint (and preceding EEOC charge) asserts a claim based solely upon his termination.
See [26] at 2–3. In any event, Plaintiff does not develop or substantively pursue a claim for
3
14
constitute pretext for discrimination. [68] at 6–7. Defendant contends that it fired
Plaintiff because of its discovery of Plaintiff’s inclusion on the IFR list. See [67] at
2, 12. Defendant seeks summary judgment on the grounds that Plaintiff lacks any
direct evidence of race discrimination, fails to establish a prima facie case of
discrimination under McDonnell Douglas, and in any event cannot show that
Defendant’s reasons for firing Plaintiff constitute pretext. See id. at 7, 8, 11.
Plaintiff does not offer any direct evidence of discrimination, but argues that
he has established his prima facie case under McDonnell Douglas. See [68] at 4–5.
McDonnell Douglas requires Plaintiff to state a prima facie case of discrimination
by showing that: (1) he belongs to a protected class; (2) at the time of his
termination, he was performing reasonably on the job in accordance with
Defendant’s legitimate expectations; (3) despite his reasonable performance, he was
subjected to an adverse employment action; and (4) similarly situated employees
outside of his protected class received more favorable treatment. See Andrews v.
CBOCS W., Inc., 743 F.3d 230, 234 (7th Cir. 2014), overruled on other grounds by
Ortiz, 834 F.3d at 765. If Plaintiff states a prima facie case, then Defendant “must
articulate a legitimate, nondiscriminatory reason” for his termination, at which
point the burden reverts to Plaintiff to show that Defendant’s explanation is
pretextual. Id. An inquiry into pretext requires evaluating “the honesty of the
employer's explanation, rather than its validity or reasonableness.” O’Leary v. v.
Accretive Health, Inc., 657 F.3d 625, 636–37 (7th Cir. 2007).
discriminatory acts during his employment in his brief, see [68] at 5, and thus waives such
“perfunctory and undeveloped arguments.” Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016).
15
The parties agree that Plaintiff belongs to a protected class, satisfying the
first element of his prima facie case. See [67] at 8. Plaintiff also meets the third
prong of McDonnell Douglas because termination constitutes a materially adverse
employment action. Lewis, 496 F.3d at 653.
Defendant contends, however, that
Plaintiff fails to meet the second and fourth prongs because Plaintiff fails to show
that he met Defendant’s legitimate expectations or that Defendant treated similarly
situated employees more favorably. [67] at 8.
i.
Legitimate Employment Expectations
Ordinarily, for a plaintiff to successfully state a prima facie case of
discrimination, he must show that he met his employer’s legitimate expectations.
Andrews, 743 F.3d at 234. But the Seventh Circuit has held that this “flexible”
inquiry “may be unnecessary” when “the issue is whether the plaintiff was singled
out for discipline based on a prohibited factor.” Ismail v. Brennan, 654 F. App’x
240, 243 (7th Cir. 2016) (internal quotation marks omitted). In other words, even if
a plaintiff failed to meet “his employer’s legitimate expectations, he can still
establish a prima facie case” if his employer “applied its expectations against him in
a discriminatory manner.” Dossiea v. Bd. of Educ. of City of Chi., No. 07-c-1124,
2008 WL 4133418, at *4 (N.D. Ill. Aug. 22, 2008) (citing Peele v. Country Mut. Ins.
Co., 288 F.3d 319, 329 (7th Cir. 2002)).
Thus, if “a plaintiff produces evidence
sufficient to raise an inference that an employer applied its legitimate employment
expectations in a disparate manner, the second and fourth prongs of McDonnell
Douglas merge.” Peele, 288 F.3d at 329.
16
Here, neither party claims that Plaintiff’s termination related to his job
performance.
See [67] at 7–8; [68] at 4–5.
Rather, Defendant contends that
Plaintiff could not possibly meet its legitimate expectations because they
encompassed eligibility for employment, and Plaintiff’s inclusion on the IFR made
him ineligible to work for the City. See [67] at 7–8; DSOF ¶¶ 18–19, 43; [65-3] at
26, 28–29, 51–52; [65-6] at 147.
Perhaps unsurprisingly, little case law exists on how such an error in hiring
interacts with the legitimate expectations inquiry.
But in somewhat analogous
cases where plaintiffs allege that an employer unlawfully failed to hire or promote
them, plaintiffs have the burden of showing that they were qualified for the desired
position. See Ritter v. Hill ’N Dale Farm, Inc., 231 F.3d 1039, 1045 (7th Cir. 2000);
Pafford v. Herman, 148 F.3d 658, 669 (7th Cir. 1998); see also Kralman v. Ill. Dep’t
of Veterans’ Affairs, 23 F.3d 150, 153 (7th Cir. 1994) (noting the “inevitable”
adaptation of legal standards across discrimination cases, “given the various types
of employment action—i.e., hiring, demotions, discharges—that may be at issue”).
Other courts have found that ineligibility for a position constitutes a “legitimate,
non-discriminatory reason for terminating an employee.” See McNeil v. Command
Ctr., Inc., No. 8:09-cv-60, 2011 WL 666255, at *3 (D. Neb. Feb. 14, 2011) (citing
EEOC v. Trans State Airlines, Inc., 462 F.3d 987 (8th Cir. 2006)); see also Franklin
v. Flowserve FSD Corp., No. 6:14-cv-40, 2015 WL 6756921, at *9 (W.D. Va. Nov. 5,
2015). Finally, some courts have found that the “legitimate expectations” prong of
McDonnell Douglas incorporates an inquiry into whether the plaintiff was “qualified
17
for the position.” Meads v. Dixie Consumer Prods., LLC, No. 5:08-507, 2010 WL
3168091, at *7 (E.D. Ky. Aug. 10, 2010) (citing Russell v. Univ. of Toledo, 537 F.3d
596, 604 (6th Cir. 2008)); see also Franklin, 2015 WL 6756921, at *6.
Following that persuasive precedent, this Court concludes that Plaintiff
failed to meet Defendant’s legitimate expectations because his actions placed him
on the IFR list and he was thus ineligible for the position for which he was
mistakenly hired. See Darbha v. Capgemini Am., Inc., No. 10-c-2581, 2012 WL
718826, at *6 (N.D. Ill. Mar. 6, 2012) (merging the failure to hire and termination
analyses and finding that the plaintiff did not meet his employer’s expectations
where “he was not qualified” for any open positions after his initial assignment
ended). Absent facts not present here, this Court cannot second-guess Defendant’s
use of the IFR list, because it is not “the province of the court to determine whether”
Defendant’s expectations were “fair, prudent, or reasonable,” so long as they were
nondiscriminatory. Widmar v. Sun Chem. Corp., 772 F.3d 457, 464–65 (7th Cir.
2014). Thus, Plaintiff “cannot create a factual dispute” by arguing that Defendant
should have retained him despite its policy to deny employment to individuals on
the IFR list; if Plaintiff did not meet Defendant’s facially legitimate criteria, then he
failed to meet Defendant’s legitimate job expectations. See id.
Plaintiff does not directly contest the validity of the IFR list or Defendant’s
policies. Instead, he argues that his initial placement on the IFR list was racially
motivated, and that Defendant did not fire other employees it discovered were on
the IFR list. See R. DSOF ¶ 28; [68] at 4. This Court discusses the latter argument
18
in the next section, addressing whether those employees were similarly situated to
Plaintiff. As to Plaintiff’s initial placement on the IFR, Plaintiff fails to show that
Defendant improperly placed him on the list.
Plaintiff claims that Defendant has no evidence to support the OIG’s finding
that Plaintiff unlawfully possessed a stolen U-Haul. R. DSOF ¶ 28. This argument
borders upon the frivolous, since the OIG report constitutes competent evidence, as
does the report from the Personnel Review Board that reviewed Plaintiff’s first
termination. See Fed. R. Evid. 803(8)(B); see also Hawk v. Bd. of Educ. of City of
Chi., No. 04-c-4263, 2007 WL 844578, at *11–12 (N.D. Ill. Mar. 15, 2007) (relying
upon OIG report as evidence of misconduct prompting plaintiff’s termination); [65-5]
at 124–25; [65-7] at 186–96. The OIG report includes Plaintiff’s admission—from
an interview with OIG investigators—that he knowingly drove a stolen U-Haul.
[65-5] at 124.
personnel rules.
As stated in the OIG report, this behavior violated the City’s
See [65-5] at 125.
The Personnel Board affirmed the OIG’s
findings and further found that the City proved Plaintiff’s misconduct by a
preponderance of evidence at the February 2007 hearing. See [65-7] at 186–87.
Plaintiff argues that because he was not convicted of this crime it cannot
support his termination or his placement on the IFR list. See, e.g., R. DSOF ¶ 28.
But Plaintiff’s unlawful conduct still violated the personnel rules, which prohibit
any illegal acts by City employees, regardless of whether a prosecutor obtained a
conviction beyond a reasonable doubt in any criminal proceeding. See [65-3] at 51,
19
55. Plaintiff does not—and cannot—dispute that these rules applied to him as a
City employee under DSS. See DSOF ¶¶ 28-30; [65-3] at 13.
Plaintiff also contends that the OIG’s finding that he violated personnel rules
by omitting a conviction from his 1998 job application failed to provide grounds for
his termination or inclusion on the IFR list. See R. DSOF ¶ 28. Plaintiff contends
that because the omitted conviction had been expunged, his failure to disclose it
could not be improper. See id. But the application asked, without qualification, if
the applicant had “ever been convicted of any crime.” See [65-5] at 124 (emphasis
added).
And the personnel rules prohibit failing to disclose “any information
requested,” or providing a “misleading answer,” in any City employment
application.
Id. at 125 (emphasis added).
Plaintiff does not explain how an
expunged conviction falls outside the broad disclosure required by the City’s job
application and personnel rules. See R. DSOF ¶ 28; [68].
In sum, Plaintiff fails to show that his initial termination or placement on the
IFR list was improper.
It remains Plaintiff’s burden to show that he met
Defendant’s legitimate expectations. See Andrews, 743 F.3d at 234; Harney, 526
F.3d at 1104. Without facts to rebut Defendant’s evidence of a legitimate policy
that Plaintiff violated, and Plaintiff’s subsequent ineligibility for his position under
such policy, Plaintiff fails to meet his burden. See Widmar, 772 F.3d at 463–64;
Franklin, 2015 WL 6756921, at *6, 9; Darbha, 2012 WL 718826, at *6.
But Plaintiff also claims that Defendant applied its rules discriminatorily by
failing to include a white employee on the permanent IFR list despite similar
20
misconduct, and by failing to terminate other employees it later discovered to be on
the IFR list. See [68] at 4–5. This Court therefore must also consider whether
Defendant treated similarly situated employees more favorably in applying its
disciplinary procedures, which overlaps with the legitimate expectations prong in
the face of such allegations. See Peele, 288 F.3d at 329.
ii.
Similarly Situated Employees
To survive summary judgement under McDonnell Douglas, plaintiffs must
show that “at least one similarly situated employee, outside of their protected class,
was treated more favorably than they were.” Alexander v. Casino Queen, Inc., 739
F.3d 972, 981 (7th Cir. 2014).
To qualify as similarly situated, the proffered
comparator must be “directly comparable” to the plaintiff “in all material respects.”
Id.
The similarly-situated determination requires a “common-sense” analysis of
relevant factors, including whether the other employee “held the same position, had
the same supervisor, was subject to the same standards, and engaged in similar
conduct.”
Id. (internal quotation marks omitted).
Whether a comparator is
similarly situated is often a question of fact, but this Court may decide it at
summary judgment if “no reasonable fact-finder could find” that Plaintiff meets his
“burden on the issue.” Coleman v. Donahoe, 667 F.3d 835, 846–47 (7th Cir. 2012).
Because Plaintiff claims that Defendant disciplined him more harshly than other
employees based upon a prohibited factor, he must show that his comparators are
similar “with respect to performance, qualifications, and conduct.” Dossiea, 2008
WL 4133418, at *5 (internal quotation marks and alterations omitted).
21
With respect to his inclusion in the permanent, rather than temporary, IFR
list, Plaintiff ostensibly referenced Ardelean (the police officer placed on the
temporary IFR list) as a comparator. See PSAF ¶ 6; [68] at 4. But Ardelean was a
police officer, not a pool MTD or any kind of DSS employee; he is therefore not
“directly comparable” to Plaintiff and cannot serve as a comparator. Alexander, 739
F.3d at 981; see also Hoffman-Dombrowski v. Arlington Int’l Racecourse, Inc., 254
F.3d 644, 651 (7th Cir. 2001) (finding that employee was not similarly situated
where he and the plaintiff “did not hold the same or equivalent positions” in the
relevant period). In any event, this Court accepts Plaintiff’s representation in open
court that Plaintiff does not offer Ardelean as a comparator at summary judgment. 4
With respect to Plaintiff’s 2014 termination, Plaintiff’s proffers two City
Council employees as comparators: Sadzak and Smart. See [68] at 4–5; [26] at 12. 5
But Sadzak and Smart not only possess different jobs with different duties from
Plaintiff, they also worked for the City Council, a separate entity from the executive
branch of the City of Chicago, in which DSS exists. See DSOF ¶¶ 24, 67, 71–73.
Plaintiff has failed to show that, despite their distinct titles and employers, Sadzak
and Smart somehow remain “subject to” the same “standards” as Plaintiff or
engaged in “similar conduct.” Coleman, 667 F.3d at 848. Furthermore, Smart is
also African-American, and thus ineligible as a comparator because he falls within
The same goes for Jones, who is also African-American and thus cannot serve as a comparator since
he falls within the same protected class as Plaintiff. See Alexander, 739 F.3d at 981; [67] at 16.
4
In his response brief, Plaintiff also claims that Defendant has rehired or removed from the IFR list
“other former employees,” but does not name them, develop this argument, or cite to any authority.
[68] at 4. He waives such “perfunctory and undeveloped arguments.” Crespo, 824 F.3d at 674.
5
22
Plaintiff’s protected class.
See DSOF ¶ 67; Alexander, 739 F.3d at 981.
Thus,
Plaintiff fails to show that either Smart or Sadzak constitute valid comparators.
Because Plaintiff fails to show that Defendant treated any similarly situated
employee more favorably, he fails to prove his prima facie case under McDonnell
Douglas. See Peele, 288 F.3d at 331. Accordingly, this Court need not proceed to
the pretext inquiry. Id. at 326–27, 331.
2.
Ortiz Analysis
This Court’s conclusion does not change under Ortiz’s holistic approach.
Under Ortiz, this Court must assess Plaintiff’s evidence cumulatively, and ask
whether it would permit a “reasonable factfinder to conclude” that his race caused
his termination. Ortiz, 834 F.3d at 765; see also David, 846 F.3d at 224. Based
upon this record, it would not. Plaintiff’s evidence raises no reasonable inference
that improper motives drove Defendant’s actions.
He fails to call into question
Defendant’s well-documented reasons for his 2006 discharge, his inclusion on the
IFR list, and his 2014 discharge based upon his ineligibility for employment. Other
than his own “subjective beliefs,” Plaintiff provides no evidence that any of the
decision-makers involved in his termination acted upon any racial animus, nor do
the events around his termination show a discriminatory reason for his firing.
Zegarra v. John Crane, Inc., 218 F. Supp. 3d 655, 669 (N.D. Ill. 2016) (applying
Ortiz).
Instead, the record shows that DSS acted in response to a FOIA request, and,
based upon a subsequent investigation, Defendant realized that Plaintiff and Jones
23
were on the IFR list and terminated both of them. Although a pattern of treating
members of a protected class unfavorably can provide circumstantial evidence of
discrimination, Sun v. Bd. of Trs. of Univ. of Ill., 473 F.3d 799, 813 (7th Cir. 2007),
no such pattern exists here. The record contains no evidence that any white DSS
employees—or any DSS employees other than Plaintiff and Jones—were on the IFR
list, yet kept their jobs.
Thus, although both Plaintiff and Jones are African-
American, the record does not show any disparate treatment based upon race;
rather, their ineligibility provides “an independent and a legally permissive basis”
for their termination. Id.
Because no reasonable jury could conclude that Plaintiff’s race caused his
termination, Ortiz, 834 F.3d at 765, this Court grants summary judgment to
Defendant on Plaintiff’s discrimination claim, see Anderson, 477 U.S. at 252.
B.
Count II: Retaliation
Plaintiff alleges that Defendant fired him in 2014 because he engaged in
protected activity and that Defendant’s reasons for his termination are pretext for
retaliation. See [68] at 5. Defendant alleges that its rediscovery of Plaintiff’s status
on the IFR list prompted his 2014 discharge and seeks summary judgment on the
grounds that Plaintiff fails to show otherwise. See [67] at 13, 16.
As with discrimination claims, courts evaluating retaliation claims before
Ortiz proceeded on two tracks: the direct and indirect methods of proof. See, e.g.,
Anderson v. Donahoe, 699 F.3d 989, 994–95 (7th Cir. 2012). The direct method
required plaintiffs to show: (1) protected activity; (2) a materially adverse action by
24
their employer; and (3) “a causal connection between the two.” Id. at 995. The
indirect method required plaintiffs to “establish a prima facie case of retaliation by
demonstrating that after engaging in protected activity such as filing a charge,”
they were “subjected to an adverse employment action” despite performing
satisfactorily, and “no similarly situated employee who did not file a charge was
subjected to the adverse employment action.” Mannie v. Potter, 394 F.3d 977, 984
(7th Cir. 2005). The latter method followed the McDonnell Douglas burden-shifting
framework. See id. at 984.
Because Ortiz applies to Title VII retaliation claims, see Williams v. Office of
Chief Judge of Cook Cnty., 839 F.3d 617, 626 (7th Cir. 2016), and the parties frame
their arguments according to the direct method of proof, this Court considers the
evidence in those terms before focusing upon “the more general inquiry of whether a
reasonable jury could find” that Defendant terminated Plaintiff in retaliation for
protected activity, Harris v. Chi. Transit Auth., No. 14-c-9106, 2017 WL 4224616, at
*4–5 (N.D. Ill. Sept. 22, 2017); see also David, 846 F.3d at 224.
1.
Direct Method
Although his brief lacks clarity, Plaintiff appears to frame his retaliation
claim in terms of the old “direct method of proof.” See [68] at 5 (citing Malin v.
Hospira, 762 F.3d 552, 558–59 (7th Cir. 2014) (applying the direct method of proof)).
As noted above, to survive summary judgment under the direct method, Plaintiff
must show that: (1) he “engaged in a statutorily protected activity”; (2) he suffered a
materially adverse employment action; and (3) “there was a causal link between the
25
two.” Benuzzi v. Bd. of Educ. of City of Chi., 647 F.3d 652, 664 (7th Cir. 2011)
(internal quotation marks omitted). This Court addresses each element in turn.
i.
Statutorily Protected Activity
Statutorily protected activity includes making substantive complaints “to an
employer about impermissible discrimination.” Eskridge v. Chi. Bd. of Educ., 47 F.
Supp. 3d 781, 794 (N.D. Ill. 2014) (citing Tomanovich v. City of Indianapolis, 457
F.3d 656, 663 (7th Cir. 2006)); see also Malin, 762 F.3d at 558.
Taking all
inferences in Plaintiff’s favor, Trebatoski, 743 F.3d at 528, this Court credits
Plaintiff’s claim that he raised the issue of discrimination with Batorski in
sufficient detail to constitute protected activity in December 2013 and July 2014, see
Tomanovich, 457 F.3d at 663; [65-2] at 9–11. Thus, for the purposes of this motion,
Plaintiff satisfies the first prong of the direct method. Benuzzi, 647 F.3d at 664.
The parties do not dispute that Plaintiff’s firing constitutes an adverse
employment action.
See [67] at 13–15.
This Court therefore proceeds to the
causation inquiry.
ii.
Causation
To satisfy the causation requirement, the “protected activity of an employee
making a retaliation claim must have been ‘a but-for cause of the alleged adverse
action by the employer.’” Carlson v. CSX Transp., Inc., 758 F.3d 819, 828 (7th Cir.
2014) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013)).
This requires showing that “the adverse action would not have happened without
the activity.” Id. Plaintiff may rely “on either direct or circumstantial evidence” to
26
demonstrate Defendant’s retaliatory motive. Harper v. C.R. Eng., Inc., 687 F.3d
297, 307 (7th Cir. 2012). Circumstantial evidence of retaliation includes “suspicious
timing, ambiguous statements, behavior toward or comments directed at other
employees in the protected group, and other bits and pieces from which an inference
of discriminatory intent might be drawn.” Hobgood v. Ill. Gaming Bd., 731 F.3d
635, 643 (7th Cir. 2013) (internal quotation marks omitted). But mere “temporal
proximity” between the statutorily protected activity and the allegedly retaliatory
action rarely suffices “in and of itself to create a triable issue.” Harper, 687 F.3d at
308 (internal quotation marks omitted).
Plaintiff’s first instance of protected activity occurred in December 2013,
when he spoke with Batorski about being assigned to work at O’Hare. See [65-2] at
9–10. Plaintiff talked to Batorski again in July 2014, first to complain about his
allegedly discriminatory assignments, and then to ask about the notice he received
from Mulaney about DSS releasing his work history. See id. at 10–11. The close
temporal proximity between Plaintiff’s July 2014 complaints to Batorski and his
termination a few weeks later, see id., could constitute circumstantial evidence of
retaliation, see Hobgood, 731 F.3d at 643. But suspicious timing does not, absent
more, support “the inference of a causal link.” Anderson v. Donahoe, 699 F.3d at
996. Instead, Plaintiff must “produce facts which somehow tie the adverse decision”
to his protected activity. Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th
Cir. 2000). Plaintiff fails to do so here.
27
Plaintiff’s only argument other than this allegedly suspicious timing is that
Defendant’s rationale for his firing—his inclusion on the IFR list—was pretextual
because Defendant’s personnel rules did not “require” his termination, and
therefore Batorski—who wrote in a memo that his termination was “required”—
acted upon racial animus.
See [68] at 6–7.
While it is technically true that
Defendant’s personnel rules do not contain an express condition that requires
employees on the IFR list to be fired, such an omission possesses little probative
value since individuals on the IFR list should not be hired in the first place. See
DSOF ¶¶ 34, 43–47. Plaintiff does not dispute that he had been placed on the IFR
list, see, e.g., R. DSOF ¶ 43, and this Court has already rejected his arguments that
his inclusion on the list was improper.
Nor does Plaintiff rebut Defendant’s
evidence that it hired him in error, having failed to notice his IFR status. See
DSOF ¶¶ 34, 43–47. Batorski’s use of the word “require” may not have reflected the
letter of the personnel rules, but it properly conveyed the factual matter that
Plaintiff remained ineligible for the position he currently held. See id.; see also [691] at 9. That fact provided legitimate grounds for Plaintiff’s immediate termination.
See Franklin, 2015 WL 6756921, at *9; McNeil, 2011 WL 666255, at *3.
Plaintiff argues that Defendant’s proffered grounds constitute pretext
because of purported bias on Batorski’s part. See [68] at 7. But Plaintiff offers
nothing more than speculation about any such bias, see id., which does not
constitute evidence and cannot stave off summary judgment, see Boss v. Castro, 816
F.3d 910, 919 (7th Cir. 2016). Moreover, contrary to Plaintiff’s assertion, Batorski
28
was not the sole decision-maker regarding Plaintiff’s termination. See [68] at 7.
Rather, Owen undertook the review of employees on the IFR list, and consulted
with Batorski, Choi, and Williams about Plaintiff’s termination; and ultimately,
Williams issued the final decision.
See DSOF ¶¶ 43–47.
allegations of bias against Owen, Choi, or Williams.
Plaintiff offers no
The presence of multiple
decision-makers often makes it “difficult” to prove that an employer’s action is
discriminatory, and here, Plaintiff does not even attempt to show that each of these
individuals possessed an illicit intent to retaliate against him. See Buie v.
Quad/Graphics, Inc., 366 F.3d 496, 508 (7th Cir. 2004).
Finally, even the purportedly suspicious timing of Plaintiff’s termination fails
withstand summary judgment. A “significant intervening event” that separates the
“complaints from the discharge” can negate an inference of causality. Davis v. Time
Warner, 651 F.3d 664, 675 (7th Cir. 2011).
In Davis, that intervening event
occurred when the plaintiff violated his employer’s workplace policies.
See id.
Here, that event occurred when the Sun-Times filed a FOIA request, bringing
Plaintiff’s ineligibility for employment to Defendant’s attention. See DSOF ¶ 46.
Plaintiff offers no evidence to undermine that chain of events, and, as discussed
above, fails to point to any similarly situated employee that Defendant failed to
terminate, further negating any inference of retaliation. See Davis, 651 F.3d at 675.
In sum, Plaintiff fails to meet his burden of showing that his protected
activity causally relates to his termination. Id. at 674. Based upon the record, “no
29
reasonable jury could cross the evidentiary chasm separating” Plaintiff’s protected
activity from his termination. Id. at 675.
2.
Ortiz Analysis
This Court’s analysis does not change under Ortiz’s holistic approach. As
should be clear from the foregoing discussion, Plaintiff lacks the evidence to support
his retaliation claim. Based upon the record, no reasonable jury could conclude that
Plaintiff’s complaints to Batorski motivated his termination. See Ortiz, 834 F.3d at
765.
Thus, this Court grants Defendant summary judgment on Plaintiff’s
retaliation claim. See Anderson, 477 U.S. at 252.
IV.
Conclusion
This Court grants Defendant’s motion for summary judgment [66].
Judgment is entered in favor of Defendant and against Plaintiff on Plaintiff’s
complaint. All other dates and deadlines are stricken. Civil case terminated.
Dated: March 27, 2018
Entered:
____________________________
John Robert Blakey
United States District Judge
30
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