Smith v. Illinois Department of Transportation

Filing 69

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, Defendant's motion 53 for summary judgment is granted. A separate AO-450 judgment shall be entered. Status hearing of 09/13/2018 is vacated. Civil case terminated. Emailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TERRY SMITH,
Plaintiff,
v.
ILLINOIS DEPARTMENT OF
TRANSPORTATION,
Defendant.

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No. 15 C 2061
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
In August 2013, Terry Smith started a six-month probationary period as an
Emergency Traffic Patrol Minuteman with the Illinois Department of Transportation
(IDOT). R. 55, DSOF ¶ 4.1 But Smith never became a permanent employee, see DSOF
¶ 6—IDOT fired him in January 2014, after Smith accumulated several poor
performance

evaluations

and

engendered

complaints

from

coworkers

and

supervisors. Id. ¶ 95. Smith alleges that IDOT engaged in racial discrimination,
retaliation, and harassment under Title VII of the Civil Rights Act and 42 U.S.C.
§ 1981. DSOF ¶¶ 2-3; DSOF Exh. 1, Compl.; see 42 U.S.C. § 2000 et seq.2 IDOT moves
for summary judgment against all of Smith’s claims. R. 53, Def. Mot. for Summ. J.
For the reasons discussed below, the motion is granted.
1Citations

to the record are noted as “R.” followed by the docket number and the page
or paragraph number. Citations to the parties’ Local Rule 56.1 Statements of Fact are
“DSOF” for IDOT’s Statement of Facts [R. 55]; “PSOF” for Smith’s Statement of Additional
Facts [R. 63-2]; “Pl. Resp. DSOF” for Smith’s Response to IDOT’s Statement of Facts [R. 632]; and “Def. Resp. PSOF” for IDOT’s Response to Smith’s Statement of Additional Facts [R.
65]. When undisputed, only the asserting party’s statement of facts is cited.
2This Court has subject matter jurisdiction over the case under 28 U.S.C. § 1331.

I. Background
In deciding IDOT’s motion for summary judgment, the Court views the
evidence in the light most favorable to Smith. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). In August 2013, Terry Smith, an AfricanAmerican man, joined the Illinois Department of Transportation as an Emergency
Traffic Patrol “Minuteman” (also called ETPs). DSOF ¶¶ 1, 4. Minutemen are
responsible for removing disabled cars from the roadway, responding to assistance
calls, ensuring departmental compliance with safety rules, and operating Large CDL
Class A vehicles. Id. Smith started on a six-month probation period along with
another new hire, Jamie Lopez. DSOF ¶¶ 5-6. To become a permanent IDOT
employee, probationers must satisfactorily complete training and meet performance
expectations. Id. ¶ 6. Throughout the training period, the probationary ETPs rotated
among three shifts (A-, B-, and C-Shift) and worked alongside “Lead Workers,”
reported to “Lead Lead Workers,”3 and were shadowed by Field Training Officers. Id.
¶¶ 8-11, 14.4 The job itself is “very dangerous,” and employees must be able to perform
arduous labor, follow instructions carefully, and work together seamlessly, because
the ETPs rely on each other for assistance and protection. DSOF ¶ 7. When the
highways comprise the workplace, mistakes can be fatal. Id.

3As

in, the leader of Lead Workers.
there is a large cast of characters in Smith’s case, employees will frequently
be prefaced with an abbreviation of their position title: LW for Lead Workers, LLW for Lead
Lead Workers, and FTO for Field Training Officers. For Smith’s retaliation and hostile work
environment claims, the employee hierarchy is relevant.
4Because

2

At the start of probation, Smith and Lopez each received two initial weeks of
classroom instruction from a Lead Worker, Angel Ramirez, who also taught them the
basics, like how to navigate the highways, how to use the equipment, and how to use
the radio. DSOF ¶ 13. Next, Smith started field training, which involved driving
highway routes in an emergency patrol vehicle, a truck used to tow cars and upright
rollover vehicles. Id. ¶ 14. During this time, Smith was shadowed by various Field
Training Officers (FTO), who observed his progress, taught him new skills, and
corrected him when he erred. Id. It was these FTOs who provided the formal written
evaluations of each trainee’s performance. Id.
A. Time on A-Shift
Smith’s problems began soon after he started work. LW Ramirez assisted in
Smith’s training on his first shift, the A-Shift. DSOF ¶ 16.5 Soon, Ramirez received
several complaints from the shadowing FTOs that Smith would “debate his
instructions” and question the directives he was given, which hindered the training
process for both Smith and his training partner, Lopez. DSOF ¶ 16. When LW
Ramirez eventually evaluated Smith as part of the training process, Ramirez

5In

this instance (and indeed, throughout his responses), Smith contends in his
Response to IDOT’s Statement of Facts that a statement—such as the reports that Smith
would “debate his instructions” made to LW Ramirez—is undisputed as to having been said,
but “disputed as to its truth.” Pl. Resp. DSOF ¶ 16. But then Smith does not cite to any
contrary evidence demonstrating otherwise. Northern District of Illinois Local Rule 56.1
requires that the responding party include a “response to each numbered paragraph in the
moving party’s statement, including, in the case of any disagreement, specific references to the
affidavits, parts of the record, and other supporting materials relied upon.” L.R. 56.1(b)(3)(C)
(emphasis added). Smith’s responses that a material fact submitted by IDOT is undisputed
as to content but “disputed” as to its truth—without then supplying any citation to supporting
evidence—thus fail to properly dispute the particular factual assertion by the defense and
the assertion is deemed admitted.

3

commented that Smith could not accept critiques or use criticism to improve his
performance, and Ramirez went so far as to say that Smith was not taking the job
seriously. Id. Smith also had trouble identifying the major highway patrol routes and
had trouble using the two radios that all Minutemen carry. Id. ¶¶ 17-18.
When working on the A-Shift, Smith was also trained by FTO Marcello Valle,
LW Lloyd Colbert, FTO Cliff Thomas, and FTO Gerald Washington. DSOF ¶¶ 20-22,
26. Valle shadowed Smith on three occasions. During one of those times, Smith was
driving Valle on express lanes. Id. ¶ 20. They approached a part of the express lanes
where the lanes split—divided by a concrete pillar—into express to the left and locals
to the right; Valle told Smith to take either one. Id. ¶ 20; id. Exh. 9, Valle Dep. 42:2043:23. But Smith did not decide to go one way or the other—instead, he stopped 30
feet from the concrete pillar. DSOF ¶ 20; id. Exh. 9, Valle Dep. 43:13-23. After Valle
“found it hazardous to my health when someone can’t make a decision and decides to
go forward into a concrete pillar,” id. Exh. 9, Valle Dep. 43:21-23, he asked to be
removed from Smith’s training regimen due to Smith’s “unsafe conduct and lack of
following basic instruction.” Id. ¶ 20; id. Exh. 56, 9/4/13 Valle Memo.
LW Colbert also had driving scares while training Smith. DSOF ¶ 21.
According to Colbert, Smith would slam on the Emergency Patrol Vehicle’s brakes,
turn poorly, and one time even drove away from a gas pump with the pump’s nozzle
still inserted into the truck. Id. Colbert was concerned enough that he wrote an email
to other employees, including Lead Lead Worker Zen McHugh, alerting them to
Smith’s lack of driving skills (colorfully comparing Smith to a 16-year-old new driver),

4

and warning that if Smith worked on the road, “someone else will pay the ultimate
price.” Id.; Exh. 19, 9/4/13 Colbert to Eaves Email.
In addition to Valle and Colbert, FTO Thomas expressed similar red flags,
memorialized in a memo to Patrol Manager (PM) John Gonzalez. See DSOF Exh. 20,
9/2/13 Thomas Memo. In the memo, Thomas detailed seven instances of Smith’s
deficient performance. In the most disturbing, Smith ignored instructions to put the
truck in neutral and pull the brake. Id. ¶ 23.6 As a result, Thomas almost became
pinned between the tow truck and another vehicle while investigating a rollover. Id.
Based on his interactions with Smith, Thomas reported that Smith was “untrainable
and unsafe.” Id. ¶ 24; id. Exh. 20, 9/2/13 Thomas Memo.
Another FTO, Gerald Washington, wrote a memo about Smith’s performance,
remarking that Smith was not picking up the functions of the job and had engaged in
dangerous behaviors, like slowing down to answer the radio in the middle of traffic.
DSOF ¶ 27. Washington expressed hope that maybe Smith would catch up, but said
he could not “risk taking him out with me anymore.” Id.; id. Exh. 21, 9/4/13
Washington Memo.
To try to get Smith up to speed, the Patrol Manager, Gonzalez, put corrective
action programs into place, which included giving Smith repetitive assignments to
help him become more familiar with the geography; extra radio operations lessons so

6Smith

does dispute this, Pl. Resp. DSOF ¶ 23, and points to another complaint he
filed on “8/22/12” (presumably the actual year was 2013), but that complaint describes a truck
incident between Smith and Valle, not Smith and Thomas. So DSOF ¶ 23 is deemed admitted
because the evidence cited by Smith does not rebut the defense’s factual assertion.

5

he could become more comfortable with using the radio; and additional driving
instructions so he could correct his poor driving habits. DSOF ¶¶ 28-30.
Smith’s supervisors began documenting his problems on the job as early as
August 18, 2013, when LW Ramirez wrote in an email to PM Gonzalez, Operations
Manager (OM) Mike Schivarelli, and LLW McHugh that Smith “debate[s] his
instructions from his FTOs,” and his defiance was “becoming a serious issue with his
training.” DSOF ¶ 36. The very next day, LW Ramirez and LLW McHugh counseled
Smith (apparently for the third time) about this behavior and his “failure to
understand basic instructions.” Id. ¶ 37. On August 22, PM Gonzalez followed up with
Smith to counsel him on “not taking orders” and the “disrespect” he showed to his
trainers and FTOs. Id. ¶ 38. On that same day, however, Smith wrote a memo to
Gonzalez—titled “Discrimination/harassment at the workplace,”—that detailed an
August 19 meeting with LLW McHugh. Id. ¶ 39; id. Exh. 26, 8/22/13 Smith Internal
Compl. 4. Smith contended that McHugh said, “[I]f one more person claims you[’]r[e]
confrontational, you will be terminated,” and that all Smith should be saying is “yes
sir or no sir.” Id.
Smith’s formal evaluations during this period reflected similar issues with his
work performance. His August to September review rated him “Unsatisfactory” in
myriad skills rankings. DSOF ¶ 43; id. Exh. 27, August Personnel Eval. In the
remarks section, LW Ramirez wrote that Smith took too long to write up assist sheets
and consistently failed to follow instructions, which was a safety issue. Id. According
to Smith, the poor evaluation was itself an act of retaliation for Smith complaining

6

about FTO Valle’s profanity. DSOF ¶ 45; see also id. Exh. 23, 8/22/13 Smith Int.
Compl. 2. An October progress report that Ramirez wrote remarked that Smith was
showing improvement, but that he still needed to work on his “basic driving skills,”
“highway geography,” “multi-tasking,” and “over confidence.”

Id. ¶ 46; Exh. 28,

10/13/13 Smith Progress Report.
For his part, Smith contends that, during the time that he spent on the A-Shift,
he suffered harassment, particularly at the hands of FTO Valle. Their run-ins began
on August 18, 2013, when Valle allegedly yelled foul language at Smith and refused
to allow Smith enough time to complete an equipment check on Valle’s vehicle before
leaving the garage. DSOF ¶ 31. Smith asserts that he was later blamed for damage
to the vehicle. Id. That same day, Smith contends that LW Ramirez accused him of
being late, docked him 15 minutes of pay, and made him fill sandbags instead of
sending him on the road. DSOF ¶ 48. On August 22, Smith wrote another memo,
addressed to Patrol Manager Gonzalez, titled “Abusive language, rude to motorist
discrimination/harassment,” in which he complained about Valle’s “abusive
language, swearing, and hollering.” Id. ¶¶ 33-35; PSOF Exh. 6, 8/22/13 Smith
Internal Compl. 1. Gonzalez did investigate this complaint, but could not confirm that
Valle used abusive language toward Smith. DSOF ¶ 42; Pl. Resp. to DSOF ¶ 42.
B. Time on B-Shift
If Smith and IDOT hoped that a change to the B-Shift would help, their hopes
were misplaced. For instance, on October 13, 2013, LW Colbert sent Smith back to

7

the garage around two hours before the end of the shift. DSOF ¶ 50.7 The asserted
reasons for cutting Smith’s shift short included: Smith not listening to the radio;
failing to know his location; leaving his trainer without permission; and failing to
respond to a serious rollover accident with significant injuries. Id. In response, Smith
contends that this early dismissal and the resulting two hours of docked pay (though
Smith eventually was paid for the time) were acts of retaliation for his August
complaint against FTO Valle. DSOF ¶ 51. Smith made the assertions of retaliation
in three memos filed with IDOT’s Human Resources department. Id. ¶ 52, Exh. 30,
10/13/13 Smith Int. Compl. 5.
Smith’s B-Shift performance evaluations were no better than his A-Shift
evaluations. LW Joseph Huante memorialized his review in an email to PM Gonzalez.
DSOF ¶ 53. In the review, Huante said that Smith was “very behind where he should
be at this stage of the training period, and I am not sure further training is going to
help.” Id.; id. Exh. 31, 11/25/13 Huante to Gonzalez Email. He offered to assist Smith
in additional training to try to prepare him “for the road.” DSOF Exh. 31, 11/25/13
Huante to Gonzalez Email; Pl. Resp. DSOF ¶ 53.
When it came time for PM Gonzalez to rate Smith’s B-Shift performance,
Gonzalez scored Smith’s performance as unsatisfactory in five responsibility
categories. DSOF ¶ 79; id. Exh. 41, Nov. Personnel Eval. He also referred to Smith’s
myriad of poor evaluations from his various supervisors, noting that Smith “fails to

7Smith

disputes this, but only to say that Colbert had no authority to take the action,
which is immaterial. See Fed. R. Evid. 401. The fact is deemed admitted. Pl. Resp. DSOF
¶ 50.

8

answer his radio calls, is not sure of his locations, makes poor or unsafe decisions
during a motorist assist, passes up motorists on the shoulder[,] and is uncertain what
to do at an accident scene. When asked by a supervisor to explain or is given
constructive criticism, Mr. Smith advises he was never trained properly and becomes
argumentative.” Id. Gonzalez concluded that Smith was still failing to “grasp the
most basic functions of his job duties.” Id. According to Smith, this poor evaluation
was an act of retaliation. DSOF ¶ 78.
C. Time on C-Shift
For the last phase of their probationary period, Smith and Lopez were moved
to the C-Shift in December 2013. Although FTOs typically stopped shadowing
Minutemen by this point in training, IDOT continued having FTOs shadow both
Smith and Lopez, because IDOT was concerned that Smith was not working safely.
DSOF ¶ 54. Smith complained about the continued shadowing and unavailability of
overtime pay in two memos to PM Gonzalez: a December 5 Memo titled “Refused
overtime pay, Retaliation/Harassment,” and a December 6 Memo titled “Refused
overtime/discrimination.” DSOF ¶ 59; id. Exh. 32, 12/5/13 Smith Int. Compl. 6; id.
Exh. 33, 12/6/13 Smith Int. Compl. 7. The gist of these complaints was that LW
Colbert refused to sign off on Smith’s overtime, that he and Lopez were still being
shadowed, and that they were not allowed overtime on the C-Shift, according to
Smith. Id.
The training staff on the C-Shift also found Smith’s performance to be
underwhelming. LW John Seifried and FTO Roman McGhee were both concerned

9

with Smith’s poor driving, failure to listen, and his weak skills on the radio and in
knowing his location. DSOF ¶¶ 64-67. His supervisors tried to rectify the problems
with additional counseling and correction. DSOF ¶ 64. Both FTO McGhee and LW
Seifried realized that Smith was taking too long to respond on the radio (or not
properly responding at all), and McGhee and Seifried both later instructed Smith
some more on how to monitor the radio and made additional calls to Smith to test his
radio skills. Id. ¶¶ 67-68. LW Seifried also noted multiple occasions of Smith passing
up stranded motorists and failing to assist at calls, even when fellow Minutemen were
obviously struggling. Id. ¶¶ 69-70.8 Seifried documented his and other supervisors’
fears about Smith’s performance in a December 18 email to LLW Mark Jercha, OM
Schivarelli, and PM Gonzalez, in which Seifried explained that Smith was not ready
for the job, could not take constructive criticism, and continued to be a safety hazard
to himself and other drivers. Id. ¶ 71; id. Exh. 37, 12/18/13 Seifried to Jercha Email.
Several weeks later, Seifried followed up with another email to the same group,
noting that he did not see any improvement in Smith and listing out the same
performance problems that had plagued Smith’s tenure on the C-Shift. Id. ¶ 75; id.
Exh. 40, 1/2/14 Seifried to Jercha Email.
In the meantime, Smith filed another complaint, this one to OM Schivarelli,
requesting a change in shift due to “discrimination, harassment, [and] retaliation.”

8Smith

disputes that the deposition of Seifried does not support IDOT’s contentions,
because Seifried does not specifically testify that Smith passed stranded motorists on
“several” instances. Pl. Resp. DSOF ¶ 69. That is true—the word “several” is not in the
testimony on this line of questioning—but Seifried does testify, in detail, about the specific
circumstances of multiple occasions that Smith passed stranded motorists. See DSOF Exh.
7, Seifried Dep. at 24:12-25:9, 30:16-31:8.

10

DSOF ¶ 74; id. Exh. 39, 12/30/13 Smith Int. Compl. 9. That complaint came after a
December 27 incident where FTO McGhee heard Smith announce over the radio that
he was going to “back up” two cars in an accident down a highway ramp, which
McGhee testified is an extremely unsafe practice. Id. ¶ 72; id. Exh. 36, McGhee Dep.
at 43:7-15, 59:10-14. At the end of the shift, LW Seifried tried to advise Smith about
discontinuing that dangerous practice, but Smith ignored the rebuke, called Seifried
a liar, and topped it off by telling Seifried that he did not have to listen to him
anymore. DSOF ¶ 72. The next day, Smith denied the event entirely, telling FTO
McGhee that he never meant to back the cars off the ramp. Id. ¶ 73. That discussion
became a heated exchange, according to Smith, in which FTO McGhee called Smith
a “God damned liar” and a “stupid dumb mother F’r,” among other foul language.
DSOF ¶ 81. Smith walked away from the altercation, and coworkers held McGhee
back. Id. PM Gonzalez investigated the incident, but could not get a clear picture of
what happened—still, he reprimanded McGhee for the outburst. Id. ¶ 82; see Pl. Resp.
DSOF.
On December 31, 2013, Smith filed an internal EEO Complaint with IDOT,
alleging discrimination and retaliation based on his race. DSOF Exh. 42, 12/31/13
IDOT EEO Compl.; DSOF ¶ 84. In that complaint, Smith listed three dates of
incidents, including (1) the October 13, 2013 incident in which LW Colbert dismissed
Smith two hours early; (2) the December 5, 2013 incident in which LW Colbert
allegedly refused to pay Smith for previously authorized overtime pay; and (3) the
December 28, 2013 incident in which McGhee yelled and swore at Smith. DSOF Exh.

11

42, 12/31/13 IDOT EEO Compl.9 But instead of detailing his version of those events,
Smith only said that Lopez was treated better than him, and that Smith was
improperly denied overtime pay. Id. The internal complaint named LW Colbert, LLW
McHugh, LW Seifried, and LW Thorpe as the subjects of the complaint, id., but why
each was included is not entirely clear. IDOT investigated the complaint and found
the allegations to be unsubstantiated. DSOF ¶ 87. In January 2014, LW Colbert
allegedly retaliated against Smith for filing the December 2013 complaint by calling
him a “stupid-ass ni**a.” DSOF ¶ 88.
D. Termination
On January 9, 2014, Smith attended a pre-disciplinary meeting, having been
charged with “Unsatisfactory Work Performance” during his probationary period.
DSOF ¶ 89; id. Exh. 46, Statement of Charges. At that meeting, Smith was informed
that he had failed to successfully complete his probationary period. Id. On January
16, Operations Manager Shivarelli wrote a memo recommending that Smith not be
certified as a permanent Minuteman in light of Smith’s failure to comply with
numerous IDOT policies, the poor evaluations, and the poor work performance. DSOF
¶¶ 90-92; Ex. 48 1/16/14 Schivarelli Memo. According to Smith, Schivarelli retaliated
against Smith by withholding his permanent certification. DSOF ¶ 93.
After failing to achieve certified status, Smith had his last day of work at IDOT
on January 23, 2014. IDOT officially discharged him from his probationary position

9The

complaint only lists the incident dates, but does not explain which particular
events they pertain to. To aid the reader, the Court refers back to complaints made
surrounding those dates.

12

on January 30 through a certified letter, which Smith received on February 3. DSOF
¶ 95. But on February 2, Smith was charged in the Circuit Court of Cook County with
Reckless Conduct, for an incident where he endangered the safety of LW Colbert. Id.
¶ 97.10 In that instance, Smith drove his Chevy Impala from the center lane into the
left lane, in an attempt to push Colbert’s IDOT truck into the concrete median. Id.
Smith called this report false and declared Colbert’s police report an additional act of
retaliation against him. Id. ¶ 99. But Smith was convicted of that offense in
November 2014. Id. ¶ 98.
II. Standard of Review
Summary judgment must be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating
summary judgment motions, courts must view the facts and draw reasonable
inferences in the light most favorable to the non-moving party. Scott v. Harris, 550
U.S. 372, 378 (2007). The Court may not weigh conflicting evidence or make
credibility determinations, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697,
704 (7th Cir. 2011), and must consider only evidence that can “be presented in a form
that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). The party seeking

10See

also Pl. Resp. DSOF ¶ 97. Smith disputes the facts of the charge, but does not
properly dispute the text of the misdemeanor offense complaint, which is the fact that IDOT
asserted in DSOF ¶ 97. But that is neither here nor there, because Smith is collaterally
estopped from relitigating the issue. See infra Section II.2.D.

13

summary judgment has the initial burden of showing that there is no genuine dispute
and that they are entitled to judgment as a matter of law. Carmichael v. Village of
Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). If this burden
is met, the adverse party must then “set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S. at 256.
III. Analysis
A. Abandoned Claims
As a preliminary matter, IDOT argues that Smith abandoned the claims of
race discrimination (as distinct from retaliation and harassment). The discrimination
claims were brought under Title VII and 42 U.S.C. § 1981, and included a failure-topromote claim under Title VII. Def. Mot. Summ. J. at 2-3. Smith has repeatedly
acknowledged that he does not plan to pursue a claim based on race discrimination.
See DSOF Exh. 3, Smith Interrogatory Resp. ¶¶ 4-5; R. 63, Pl. Resp. at 3.11 And in
his response brief, Smith concedes that summary judgment should be granted on the
Section 1981 and failure-to-promote claims. Pl. Resp. at 3. In light of those explicit
waivers, summary judgment is entered against those claims. See Wojtas v. Capital
Guardian Trust Co., 477 F.3d 924, 926 (7th Cir. 2007).
B. Retaliation
Title VII bars employers from retaliating against their employees for
complaining about discrimination. 42 U.S.C. § 2000e-3(a). Smith claims that IDOT

11In

any event, it is not clear that IDOT, which is an arm of the State of Illinois, can
be subject to liability under 42 U.S.C. § 1981.

14

retaliated against him after he submitted various internal complaints against his
superiors, all premised on racial discrimination or racial harassment. See Pl. Resp.
at 3-5. For the retaliation claims to survive summary judgment, Smith must show
that a reasonable jury could find that (1) he engaged in protected activity; (2) he
suffered an adverse employment action; and (3) the adverse action was motivated by
the protected activity. Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir.
2016). The Court examines each element in turn.
1. Protected Activity
Title VII protects employees against retaliation for complaining about
discrimination. But the complaints must specifically protest discrimination on the
basis of “sex, race, national origin, or some other protected class.” Orton-Bell v.
Indiana, 759 F.3d 768, 776 (7th Cir. 2014) (quoting Tomanovich v. City of
Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006)). It is not enough to “complain[] in
general terms of discrimination.” Orton-Bell, 759 F.3d at 776. That would be “simply
a complaint about some situation at work,” Cole v. Board of Trustees of NIU, 838 F.3d
888, 901 (7th Cir. 2016), and those types of complaints are not protected by Title VII.
So, to qualify as protected activity, the employee’s complaint must “indicat[e] a
connection to a protected class or provid[e] facts sufficient to create that inference.”
Orton-Bell, 759 F.3d at 776. On format, protective activity can be presented in various
forms, including internal company complaints (so long as the employee reasonably
believes in good faith that discrimination happened). See Mattson v. Caterpillar, Inc.,

15

359 F.3d 885, 891 (7th Cir. 2004); Deloughery v. City of Chi., 422 F.3d 611, 613-14
(7th Cir. 2005).
Applying those principles to the case at hand, some of Smith’s complaints
cannot possibly be the basis for his firing on January 30, 2014. See Durkin v. City of
Chi., 341 F.3d 606, 614-15 (7th Cir. 2003) (holding that events that predate the
statutorily protected activities cannot be retaliatory). The charges filed with the
Illinois Department of Human Rights and the EEOC occurred after his discharge, so
he cannot premise his retaliatory-firing claims on those complaints. See DSOF Exh.
1, Compl. Attach. 1-2. The same goes for the memo that Smith authored in July 2014.
PSOF Exhs. 8 and 9, 7/14/14 Smith Complaints. Setting aside the firing, Smith
cannot argue that his August 22 internal complaints prompted LW FTO Valle to
retaliate on August 18—four days before the August 22 complaints—by using abusive
language. R. 54, Def. Br. at 14; DSOF ¶¶ 31-33.
But Smith did submit around 10 internal memoranda to Patrol Manager
Gonzalez and others throughout the probationary period. See, e.g., DSOF Exh. 22,
8/22/13 Smith Int. Compl. 1;12 id. Exh. 23, 8/22/13 Smith Int. Compl. 2; PSOF Exh. 7,
8/22/13 Smith Int. Compl. 3; DSOF Exh. 26, 8/22/13 Smith Int. Compl. 4; id. Exh. 30,
10/13/13 Smith Int. Compl. 5; id. Exh. 32, 12/5/13 Smith Int. Compl. 6; id. Exh. 33,
12/6/13 Smith Int. Compl. 7; id. Exh. 34, 12/28/13 Smith Int. Compl. 8; id. Exh. 39,

12There

is another complaint about the same incident, but it is unclear if it is another
separate complaint or an additional page to the included one. See PSOF Exh. 5. It does not
detail or allege any type of discrimination or harassment. Id. For the purposes of this motion,
it is immaterial and considered in conjunction with DSOF Exh. 22, 8/22/13 Smith Int. Compl.
1.

16

12/30/13 Smith Int. Compl. 9; id. Exh. 42, 12/31/13 IDOT EEO Compl. Those
complaints were submitted over a four-month span and frequently employed the
words “discrimination,” “harassment,” and “retaliation.” See id. It is true that those
are not necessarily magic words that automatically qualify the internal memoranda
as statutorily protected activity. And several of the internal complaints do not draw
a clear connection between race and the alleged misconduct. At the summary
judgment stage, however, the evidence must be viewed in Smith’s favor. Viewed
through that perspective, a reasonable jury could find that some of the internal
memos do allege facts that raise an “inference” of racial discrimination or racial
harassment. See Orton-Bell, 759 F.3d at 776.
For example, Smith submitted four separate memos on August 22, 2013. See
DSOF Exhs. 22, 23, 26; PSOF Exh. 7.13 It is true that one of the memos does not allege
any facts or use any language alleging discrimination of any kind. DSOF Exh. 22,
8/22/13 Smith Int. Compl. 1. But the others, especially when read together
(remember, Smith did file them all on the same day) draw the necessary links
between adverse action and protected class (at least a reasonable jury could so find).
In the complaint titled, “Discrimination and Harassment in the Workplace
Grievance,” Smith listed the names of his supervisors, followed by each of their racial
backgrounds. PSOF Exh. 7, 8/22/13 Smith Int. Compl. 3 (describing a supervisor as

13Two

were addressed to Patrol Manager John Gonzalez, one was addressed to “Danny
Gigoli,” and another did not name anyone in the “To” field. See DSOF Exhs. 22, 23, 26; PSOF
Exh. 7. Danny “Gigoli” almost surely is Danny Giglio, a Lead Worker on the A-shift, DSOF
¶ 11, and was arguably an appropriate person to receive a complaint from Smith. See DSOF
Exh. 1, Compl. Attach. 2 at 3.

17

“being of Hispanic descent”). At the end of the list, Smith writes that he himself is of
“black descent African American,” and immediately following that observation is the
allegation that he “experience[d] a hostile environment, [and] unequal treatment”
that hindered his training. Id. Indeed, he goes on to explicitly write that the
treatment violates “Title VII of the Civil Rights Act of 1964,” and asks for a transfer
to avoid retaliation Id.
The other two memos submitted the same day also include “discrimination”
and “harassment” in their titles. DSOF Exh. 23, 8/22/13 Smith Int. Compl. 2; id. Exh.
26, 8/22/13 Smith Int. Compl. 4. In those complaints, Smith details abusive language
allegedly used against him by his supervisors and trainers. It is true that these two
memos do not make the same overt connections to his race, but read in light of his
same-day complaint listing out his supervisory staff’s races, he did not need to. Both
subjects of the other August 22 complaints, FTO Valle and LLW McHugh, see id.,
were among the listed supervisors in the other, more explicit complaint, where Smith
listed FTO Valle as being of “Hispanic descent” and LLW McHugh being of
“Caucasi[a]n descent.” PSOF Exh. 7, 8/22/13 Smith Int. Compl. 3.14 A jury could
reasonably find that the other two memos qualified as complaints against racial
discrimination.

14It

is unclear why the internal memo listing the races of Smith’s supervisors was the
only one absent from IDOT’s summary judgment materials, which included 57 other exhibits.
See PSOF Exh. 7, 8/22/13 Smith Int. Compl. 3. It is especially strange because the four memos
were submitted on the same day and are in the same Bates-stamp range in the discovery
production.

18

Moving past August 22, 2013, other follow-up complaints also included the
words “discrimination,” “retaliation,” and “harassment,” and continued to assert facts
from which to infer that Smith was continuing to protest racial discrimination. For
example, in one complaint addressed to PM Gonzalez, after describing another
incident that Smith felt was unfair, Smith requests “that this Harassment and
Retaliation [] stop.” DSOF Exh. 32, 12/5/13 Smith Int. Compl. 6. The next day, Smith
penned another memo to PM Gonzalez, asking that Smith and Lopez “be train[ed]
like everyone else, to be treated fair” [sic]. DSOF Exh. 33, 12/6/13 Smith Int. Compl.
7. All in all, when the evidence is viewed in Smith’s favor, at least some of the internal
memos could reasonably be said to qualify as protected activity. This element cannot
form the basis for summary judgment on the retaliation claims.
2. Adverse Employment Actions
Moving on, the second element of a retaliation claim requires that the plaintiff
suffered a “materially adverse employment action.” Boss v. Castro, 816 F.3d 910, 918
(7th Cir. 2016). To assess the materiality of an employment action, courts ask
“whether it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. Title VII does not, however, set forth a
“general civility code for the American workplace,” so “petty slights, minor
annoyances, and bad manners” do not qualify as materially adverse actions. Id.
Neither does a “mere inconvenience or an alteration of job responsibilities” that would
not otherwise dissuade a reasonable employee from protesting discrimination under
Title VII. Hobbs v. City of Chi., 573 F.3d 454, 463-64 (7th Cir. 2009).

19

There is no doubt, of course, that IDOT’s decision to not certify Smith for
permanent employment and to terminate his employment qualify as materially
adverse employment actions. Also, Smith contends that he was denied overtime. That
too is a materially adverse action, because an employee reasonably would be
dissuaded from protesting discrimination if the punishment were denial of overtime
pay.
But none of the other actions qualify. Throughout the internal memoranda,
Smith complains that various job assignments and other job conditions imposed on
him were, in fact, acts of retaliation. For example, Smith alleges that LLW Jercha
reintroduced “shadowing” of Smith and Lopez by on-duty FTOs as retaliation for
complaints that Smith filed against LW Colbert and Valle, as well as for the
complaint submitted to Schivarelli on December 28, 2013. DSOF ¶ 60; id. Exh. 2,
Smith Dep. at 135:7-136:7; see also DSOF Exh. 34, 12/28/13 Smith Int. Compl. 8.15
During the probationary period, however, IDOT supervisors do shadow the ETPs.
DSOF ¶ 55. Shadowing is a normal part of an ETP’s training, and indeed additional
shadowing can help successfully train ETPs—a fact that Smith does not dispute. Id.16
The same goes for Smith’s allegation that LLW Jercha retaliated against him by
making him go out “on the road” while allowing his training partner, Lopez, to stay
back at ETP headquarters to “work the pumps.” DSOF ¶ 63; id. Exh. 2, Smith Dep.

15Of

course, the December 28, 2013 complaint cannot be the basis for contending that
shadowing before that date was in retaliation for the December 28 complaint. See DSOF ¶ 61;
id. Exh. 34, 12/28/13 Smith Int. Compl. 8
16See supra footnote 5 on Smith’s failure to cite contrary evidence, as required by Local
Rule 56.1(b)(3)(C), in disputing this factual contention.

20

137:17-141:14. These are all “assignments or tasks consistent with the job duties” of
an ETP. See Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 505 (7th Cir. 2004),
overruled on other grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765-66 (7th
Cir. 2016). Aside from the firing and the denial of overtime, Smith is essentially
complaining that he was made to do his job on a given day. That does not rise to the
level of a materially adverse employment action.
3. Causal Connection
Smith’s last hurdle on the retaliation claims is to show that a reasonable jury
could find that the protected activity was the but-for cause of the denial of overtime
and the firing. In other words, Smith must show that the “unlawful retaliation would
not have occurred in the absence of the alleged wrongful action” of the employer.
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). He cannot do that:
even when the record evidence is viewed in his favor, there is overwhelming evidence
that IDOT trainers and supervisors reasonably believed that Smith performed
unsatisfactorily in a variety of ways and contexts. The facts underlying the poor
performance were detailed in the Background section, see supra at 3-12, but some
bear repeating.
Early on, the August 2013 to September 2013 performance review rated Smith
as “Unsatisfactory” in various skills rankings. DSOF ¶ 43; id. Exh. 27, August
Personnel Eval. In the remarks section, LW Ramirez specifically observed that Smith
took too long to write up assist sheets and consistently failed to follow instructions,
which gave rise to safety concerns. Id. In response, Smith contends that the poor

21

performance review was an act of retaliation for Smith complaining about FTO
Valle’s profanity. DSOF ¶ 45. But Smith offers no evidence for that assertion. There
is simply nothing that even tends to show a connection between Smith’s protest of
Valle’s alleged profanity and the unsatisfactory August-September review. Indeed,
other FTOs complained to LW Ramirez that Smith would debate instructions and
question everything the trainers told him to do. DSOF ¶¶ 16, 43-44; id. Exh. 17,
8/18/13 Ramirez to Gonzalez Email; id. Exh. 27, August Performance Eval. Smith
does not offer evidence to explain away those negative views of his performance. See
Pl. Resp. DSOF ¶ 16. In the November-December evaluation, yet another supervisor,
Patrol Manager Gonzalez, rated Smith as unsatisfactory in five job duties, and
observed that Smith did “not grasp the most basic functions of his job duties” based
on “numerous supervisor evaluations.” DSOF ¶ 79; id. Exh. 41, Nov/Dec Performance
Eval. Again, Smith does not dispute those facts with evidence, nor otherwise try to
connect the performance with a motive to retaliate. And these negative performance
evaluations were issued in the midst of reports that Smith was a dangerous and
unskilled driver, including the time when FTO Thomas was almost pinned between
two vehicles because Smith disregarded an instruction to put the truck in neutral and
put on the brake. DSOF ¶ 20 (Valle); id. Exh. 56, 9/4/13 Valle Memo; DSOF ¶ 21
(Colbert); id. Exh. 19, 9/4/13 Colbert to Eaves Email; DSOF ¶¶ 23-24 (Thomas); id.
Exh. 20, 9/2/13 Thomas Memo.
There is more. On October 13, 2013, LW Colbert sent Smith back to the garage
two hours early because Smith was not listening to the radio, did not know his

22

location, left his trainer without permission, and failed to respond to a dangerous
rollover accident. DSOF ¶ 50; Pl. Resp. DSOF ¶ 50.17 (Smith was ultimately paid for
those hours, albeit after filing a grievance. DSOF ¶ 51; Pl. Resp. DSOF ¶ 51.) Smith
contends that the early dismissal was retaliation for complaints that Smith filed
against FTO Valle for abusive language. DSOF ¶ 51. But no reasonable jury could
find that Smith was dismissed early due to complaints filed two months earlier and
filed against, no less, a different supervisor. The same goes for Smith’s allegation that
LW Colbert retaliated against him by withholding previously authorized overtime
pay on December 5, supposedly because Smith submitted internal complaints on
October 13. First, there is no evidence that LW Colbert was even aware of the October
13 complaints. What’s more, Smith himself described Colbert’s decision to deny
overtime as based on a provision of the union agreement. DSOF Exh. 32, 12/5/13
Smith Int. Compl. 6.18 Ultimately, Patrol Manager Gonzalez authorized Smith’s
overtime and verbally counselled Colbert on the correct policy—that if Smith was
sent on an assist that exceeded his scheduled hours, he needed to be paid overtime.

17Smith

argues that these facts are disputed, because Colbert had no authority to
dismiss him early. But Smith does not cite to any admissible evidence that Colbert did not
have that authority. More importantly, even if Colbert could not send Smith back early,
Smith does not dispute that the underlying performance problems happened, namely, that
he failed to listen to his radio and ignored an important assignment. So those facts are
deemed admitted. In the Local Rule 56.1 Statement, IDOT’s assertion was not that LW
Colbert had the authority to dismiss Smith early, but rather that Smith failed to do his
assigned work on October 13, 2013. Smith does not dispute that the day played out as Colbert
testified. See DSOF Exh. 18, Colbert Dep. 24:17-27:22.
18The agreement itself is apparently not in the record, but that does not matter
because Smith himself cited Colbert’s reasoning in his internal complaint, which raises no
inference of retaliation. See DSOF Exh. 32, 12/5/13 Smith Int. Compl. 6.

23

DSOF ¶ 58; id. Exh. 8, Gonzalez Dep. 74:7-75:17. None of those facts remotely suggest
that LW Colbert denied overtime with a retaliatory motive.
Finally, Smith contends that Operations Manager Michael Schivarelli
retaliated against him by recommending that he not be certified as a permanent
employee. DSOF ¶ 93. In the recommendation, Schivarelli cited numerous policy
violations committed by Smith, poor work performance, multiple negative
evaluations, and the “strong possibility” that Smith’s continued employment would
put “himself, coworkers and the motoring public in danger.” DSOF ¶ 90; Exh. 48,
Schivarelli Non-certification Memo. In response to this crucial assertion of facts in
IDOT’s 56.1 Statement, all Smith says is: “Undisputed as to what he recommended
only.” Pl. Resp. DSOF ¶ 90. Smith cites zero evidence to dispute the basis for
Schivarelli’s recommendation. Id.19
It is worth discussing one particular piece of evidence that Smith relies on in
his own Statement of Additional Material Facts. Smith offers the affidavit of Marvin
Harrison, who is a former IDOT employee. See PSOF ¶¶ 1-8. Under Rule 56,
affidavits of course can be used to oppose a summary judgment motion. Fed. R. Civ.
P. 56.1(c)(4). But the affidavit must be “made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or declarant is
competent to testify.” Id. The Harrison affidavit is replete with generalized assertions

19As

discussed earlier, under Local Rule 56.1, Smith cannot just assert facts in his
response brief and then not present them in the response to the 56.1 Statement. So any facts
solely asserted in the response brief without a corresponding presentation in Smith’s 56.1
response are disregarded. Gray v. Cannon, 974 F. Supp. 2d 1150, 1162 (N.D. Ill. 2013); Malec
v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000) (citing Midwest Imports, Ltd. v. Coval, 71
F.3d 1311, 1317 (7th Cir. 1995)).

24

that lack a proper evidentiary foundation. For example, Harrison says that he
“witnessed [Smith] being discriminated against on many different occasions by the
department and its agents.” PSOF Exh. 1, Harrison Aff. ¶ 4. But what happened on
those “many different occasions?” Who was involved, and when did it happen? These
are basic foundational facts that must be presented in order to show that the affidavit
is based on personal knowledge.
In other instances, Harrison offers foundational facts, but the evidence ends
up contradicting Smith. For example, Harrison asserts that he witnessed Colbert use
the n-word against Smith “frequently.” Harrison Aff. ¶ 4. But Smith himself contends
that Colbert only used the slur toward him on one occasion. DSOF ¶ 88; PSOF ¶ 17.
Harrison alleges that Smith had inept trainers, PSOF Exh. 1, Harrison Aff. ¶¶ 3-4,
but Jamie Lopez—whom Smith offers as a comparator—had the very same training
staff as Smith. DSOF ¶ 5; Pl. Resp. DSOF ¶ 5.20 The Harrison affidavit does not rebut
IDOT’s overwhelming evidence that supervisors genuinely believed that Smith had
performed unsatisfactorily—even dangerously—while on the probationary period.
4. Retaliatory Police Report
A separate discussion is warranted on Smith’s contention that LW Colbert filed
a false police report against Smith, which resulted in a reckless-conduct charge filed
against Smith in February 2014. DSOF ¶¶ 97-99. Smith was charged with driving
his car into Colbert’s truck (while Colbert was in it), in an attempt to push Colbert

20Smith

disputes that he and Lopez had the same training, but he only cites PSOF
¶ 16, which actually refers to a statement by Seifried and has nothing to do with Lopez’s
training. So the fact is deemed admitted.

25

into a concrete median. DSOF ¶ 97. Smith denies that happened, and asserts that he
was with his girlfriend at the time of the alleged attack. Pl. Resp. DSOF ¶ 97.
But that argument is foreclosed by issue preclusion: the state trial judge found
Smith guilty of the reckless-conduct offense in September 2014. DSOF ¶ 98; id. Exh.
51, Illinois v. Smith, No. 14 1 20661, Bench Trial Tr. at 71:12-75:4, 79:9-10 (Sept. 22,
2014). Issues that have been previously “litigated fully and decided with finality in a
previous proceeding” are barred from relitigation by the principle of collateral
estoppel. Sornberger v. City of Knoxville, Ill., 434 F.3d 1006, 1020 (7th Cir. 2006).
Illinois rules of issue preclusion govern. Brown v. City of Chi., 599 F.3d 772, 774 (7th
Cir. 2010). In Illinois, issue preclusion applies when there is an identity of the issue;
there is a final judgment on the merits in the prior case; and the estopped party was
a party (or in privity with one) in the prior case. Dunlap v. Nestle USA, Inc., 431 F.3d
1015, 1018 (7th Cir.2005) (citing Herzog v. Lexington Twp., 657 N.E.2d 926, 929-30
(Ill. 1995)).
Here, Smith already litigated whether he tried to push Colbert’s truck into the
median. Smith contended that he fell asleep in the car while out with his girlfriend.
DSOF Exh. 51, Illinois v. Smith, No. 14 1 20661, Bench Trial Tr. at 72:16-74:4 (Sept.
22, 2014). But he lost. Indeed, during the state-court trial, evidence was introduced
about Smith’s workplace run-ins with Colbert and Smith’s suspicion that Colbert was
retaliating against him See id. 29:1-36:13. So issue preclusion applies: the police
report filed by Colbert was not based on made-up charges. Smith is stuck with a
finding that he intentionally used his car in an attempt to push Colbert into the

26

concrete median. That finding forecloses Smith’s theory that Colbert dreamt up the
charges to retaliate against him.
C. Hostile Work Environment
Next up is Smith’s hostile work environment claim. Title VII prohibits
employers from imposing a hostile work environment on an employee based on race.
See Huri v. Office of the Chief Judge of the Circuit Court of Cook Cty., 804 F.3d 826,
831-32 (7th Cir. 2015). The elements of a racially hostile work environment claim are:
(1) the employee was subjected to unwelcome harassment; (2) the harassment was
based on race; (3) the conduct was so severe or pervasive as to create a hostile work
environment; and (4) there is a basis for employer liability. Id. at 834. Even when the
evidence is viewed in Smith’s favor, no reasonable jury could find that the alleged
harassment was severe or pervasive enough, and (save for a few exceptions) that the
alleged harassment was racially motivated.
It is true that harassing conduct need not be both severe and pervasive—even
one instance might be “sufficiently severe” to constitute harassment. Jackson v. Cty.
of Racine, 474 F.3d 493, 499 (7th Cir. 2007). And pervasiveness alone also might
qualify if non-severe conduct becomes an “incessant part of the workplace” and is
“corrosive enough.” Id. Ultimately, however, the misconduct must be so severe or
pervasive that it “alter[s] the terms or conditions of the employment relationship.”
Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999). In this case, what Smith offers
falls short of sufficient severity. For example, Smith contends that LW Ramirez made
Smith fill sandbags on August 18, 2013, DSOF ¶ 48, but requiring an employee to

27

perform his basic job duties does not create a hostile environment. On that same day
(August 18), FTO Valle allegedly yelled and cursed at Smith. Pl. Resp. DSOF ¶ 31;
see DSOF Exh. 2, Smith Dep. 183:12-184:1, 190:6-197:7. Yelling and swearing at an
employee is obviously unprofessional, but Smith does not describe that it rose to a
level that could be deemed a hostile work environment. Also, on discriminatory
intent, Smith conceded that Valle practiced “equal opportunity” when it came to
yelling and cursing at employees and conceded that he “can’t really say” and “does
not know” if Valle’s shouting and swearing “was because of race or because of his
personal” attitude. DSOF ¶ 32; id. Exh. 2, Smith Dep. 79:16-80:1, 184:7-10.
Similarly, there is no evidence from which to infer that Smith’s run-in with
FTO McGhee was based on race. McGhee allegedly called Smith a “God damned liar”
and a “stupid dumb mother F’r.” DSOF ¶ 81. But this was the product of serious
safety concerns: the insults were in response to Smith telling McGhee that Smith was
going to “back up” two cars in an accident down a highway ramp. Id. ¶ 72; id. Exh.
36, McGhee Dep. at 43:7-15, 59:10-14. Smith provides no evidence from which a jury
could reasonably conclude that McGhee’s outburst was racially motivated. It is not
enough to simply point to co-trainee Lopez and say that no one ever yelled at Lopez.
Sure, if Lopez had proposed backing up two cars down a ramp and McGhee did not
yell at Lopez, then there would be a reason to infer race might be the motivation. But
there is no reason to think that happened.
The absence of severity or a race-based motive is a problem for most of Smith’s
other instances of alleged harassment. Smith points to LLW McHugh’s warnings to

28

Smith about his confrontational attitude during their August 19, 2013 meeting.
DSOF ¶ 39; DSOF Exh. 26, 8/22/13 Smith Int. Compl. 4. But there is no evidence of
a connection to race, and verbal warnings about poor performance are not the type of
severe conduct that qualifies as harassment. The same goes for Smith’s allegations
that Colbert dismissed Smith early by two hours during one shift and refused to
authorize overtime. See DSOF ¶¶ 50, 57-58. Not even Smith’s internal complaints
about these incidents said that they were motivated by race. DSOF Exhs. 30, 32,
Smith Int. Compls. 5-6.
The event that comes the closest to creating a hostile work environment is an
exchange between Smith and Colbert, in which Colbert allegedly called Smith a
“stupid ass ni**a.” PSOF ¶ 17; Def. Resp. PSOF ¶ 17.21 Colbert denies that the
exchange ever happened. Def. Resp. PSOF ¶ 17; DSOF Exh. 18, Colbert Dep. 52:7-11;
DSOF Exh. 51, Illinois v. Smith, No. 14 1 20661, Bench Trial Tr. at 35:6-15 (Sept. 22,
2014). Unlike the instances of yelling and delivering criticisms, of course a jury could
find that Colbert’s use of this vile racial slur was motivated by race. But that is the
one instance of anything similar happening. To be sure, that is one of the most vile
words ever invented, but generally speaking, one instance is “not sufficiently severe
or pervasive to alter the conditions of employment” or to create an “objectively hostile
work environment.” Sanders v. Village of Dixmoor, Ill., 178 F.3d 869, 869 (7th Cir.
1999) (rejecting hostile work environment claim where sole evidence of racial

21Smith

also contends Colbert’s use of this word was retaliation for earlier complaints.
DSOF ¶ 88. But this outburst and racial slur—while troubling—do not constitute an adverse
employment action in the case of Title VII retaliation. See Hobbs, 573 F.3d at 463-64.

29

harassment was the supervisor’s insult, “N****r, you’re suspended”); see also Peters
v. Renaissance Hotel Op. Co., 307 F.3d 535, 551-52 (7th Cir. 2002).22 Just so here:
without additional evidence of racial harassment, summary judgment must be
granted against Smith’s claim.23
D. Expert Testimony
The final topic that requires discussion is Smith’s reliance on a report authored
by a former human-resources professional, Maria Veronico, as expert evidence under
Federal Rule of Evidence 702. PSOF Exh. 10, Veronico Report. There are two barriers
to considering Veronico’s report as part of the evidentiary mix in support of Smith.
First, as IDOT correctly argues, Smith attempted to present the report in his
Statement of Additional Material Facts, but did so just by wholesale citing it as
Paragraph 28 of that Statement: “Maria Veronico Report (Def. Ex. 52).” PSOF ¶ 28.
In other words, instead of excerpting relevant parts and presenting the report’s
assertions in a paragraph-by-paragraph fashion as required by Local Rule 56.1,
Smith just tried to incorporate the entirety of the report, making it practically
impossible for IDOT to respond.
To be sure, that formatting problem perhaps could be forgiven based on its
purported nature, that is, as expert evidence, which does not always lend itself to

22As

discussed earlier, former IDOT employee Harrison did assert that Colbert called
Smith “the N-word frequently,” PSOF ¶ 1; id. Exh. 1, Harrison Affidavit ¶ 4, but there is
insufficient foundation for that averment (what were the circumstances, when did those
instances occur, and so on).
23Smith did not specifically argue that the individual instances should be considered
together cumulatively. But remember that there is only one incident for which the jury could
find a racial motivation.

30

Local Rule 56.1’s paragraph-by-paragraph structure (although plenty of litigants do
abide by that structure in presenting expert evidence). But there is a second problem,
and it is definitely fatal: the report tries to present opinions that do not satisfy
Federal Rule of Evidence 702.
Rule 702 appoints district courts as gatekeepers of purported expert testimony
based on scientific, technical, and other specialized knowledge. Kumho Tire Co., Ltd.
v. Carmichael, 526 U.S. 137, 147 (1999); Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579 (1993). Rule 702 permits a witness to offer opinion testimony if the witness
is qualified based on “knowledge, skill, experience, training, or education” in the
pertinent field. Mihailovich v. Laatsch, 359 F.3d 892, 918 (7th Cir. 2004). Even if the
witness qualifies as an expert, the district court still must ensure that the evidence
“is sufficiently reliable to qualify for admission.” Id. Under Rule 702, the three
requirements for reliability are: “(1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of the case.” Id.
(quoting Fed. R. Evid. 702). To make this evaluation, the district court must
“scrutinize proposed expert witness testimony to determine if it has ‘the same level
of intellectual rigor that characterizes the practice of an expert in the relevant field.’”
Lapsley v. Xtek, Inc., 689 F.3d 802, 804 (7th Cir. 2012) (quoting Kumho Tire, 526 U.S.
at 152). Whether to allow expert testimony rests within the discretion of the district
court. Id. at 810.

31

In this case, Veronico’s experience and qualifications are not the problem. She
earned a bachelor’s degree in business from the University of Wisconsin at Kenosha,
as well as a master’s degree in industrial and labor relations, with a specialty in
employment law, from the University of Wisconsin at Milwaukee. DSOF Exh. 54,
Veronico Dep. 26:22-27:14. She then worked in human resources departments, and
eventually began consulting in human resources matters. Id. 30:6-7, 33:1-3, 40:1641:7. Neither side contests that she is a qualified human resources expert.
Although Veronico’s qualifications are not a problem, what she relied on in
generating her opinions is a problem. In order for Veronico to offer reliable opinions,
she must base those opinions on “sufficient facts and data.” United States v. Mamah,
332 F.3d 475, 478 (7th Cir. 2003). That she did not do. Veronico omitted a substantial
set of facts from her analysis, and instead relied only on what appears to be plaintiffcurated records (the records are attached to her report). DSOF ¶ 102. The records
mainly were comprised of interview summaries of IDOT employees. Pl. Resp. DSOF
¶ 106. For some unknown reason, Veronico did not consider deposition testimony in
this case. DSOF ¶ 106. That left out much of IDOT’s side of the case. One glaring
example is Veronico’s opinion that “nothing constructive was done” for Smith’s job
difficulties and that “there was no intention of attempting to improve plaintiff’s
performance.” DSOF ¶ 111. But nearly all of Smith’s supervisors testified in their
sworn depositions about the additional training and help provided to Smith in an
attempt to improve his performance. DSOF ¶¶ 25, 38, 67-68, 72, 80, 107. But Veronico
was not aware of this evidence, because she never reviewed it.

32

Aside from the deposition problem, Veronico also had no reliable basis on which
to opine that Ramirez, McHugh, and Colbert all retaliated against Smith. DSOF
¶ 110 (citing Veronico deposition testimony); id. Exh. 53, Veronico Report at 4-7.
Veronico did not connect the alleged acts of retaliation to specific supervisors who
knew about Smith’s protected activity. DSOF Exh. 54, Veronico Dep. 60:12-16 (“Q.
You possess no facts or data when or even if Mr. Ramirez became aware of this charge
… A. I have no facts or data, correct”); id. 75:23-25 (same as to Colbert); id. 76:2477:2. In her deposition, Veronico outright conceded, “I don’t know a date of when
anyone became aware of complaints.” Id. 60:10-11. Yet a fundamental requirement
of a retaliation claim is that the alleged retaliator know that the employee engaged
in protected activity—absent that knowledge, the supervisor cannot have the
requisite motive to retaliate. Veronico did not base the retaliation opinion on reliable
facts.
One final flaw is worth discussing. Veronico’s report offers opinions on the
ultimate issues in the case, that is, whether Smith was subjected to retaliation and
to a hostile work environment. It is true that Federal Rule of Evidence 704(a) says
that, in civil cases, an expert opinion “is not objectionable just because it embraces
an ultimate issue.” Fed. R. Evid. 704(a). But an expert opinion on an ultimate issue
still must satisfy Rule 702 (as well as Rule 403), and here—even setting aside the
reliability defects identified above—it would not assist the jury to have a human
resources professional offer an opinion on the ultimate issue. See Good Shepherd
Manor Found., Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003) (affirming

33

exclusion of expert who proposed to testify whether the defendant violated the law);
United States v. Sinclair, 74 F.3d 753, 757 n.1 (7th Cir. 1996) (expressing skepticism
of expert “opinions about legal issues that will determine the outcome of the case”).
Under Title VII, retaliation and hostile work environment are claims to which federal
courts have given legal meaning (by interpreting the statutory text), and those claims
have specific elements. Allowing ultimate-issue opinions in this context would
trample on what the jury is supposed to decide.24
IV. Conclusion
For the reasons discussed, IDOT’s motion for summary judgment is granted.
No reasonable jury could find for Smith on the retaliation or hostile work
environment claims. The status hearing of September 13, 2018 is vacated, and final
judgment will be entered.

ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: August 8, 2013

24It

should be noted that the Court disagrees with the defense critique that Veronico’s
opinion also is unreliable because she did not engage in the same type of investigation that
she would have in a real-world human resources role. Def. Br. at 20. But an expert like
Veronico does not have the same capability to replicate what a human resources professional
would have done at the time of Smith’s probationary period. For example, it simply is not
feasible to conduct in-person interviews of the supervisors and coworkers. So, although it is
fair to criticize Veronico for failing to read the deposition testimony of the witnesses, it misses
the mark to fault her for not conducting a real-world human resources investigation.

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