Gomez v. City of Chicago

Filing 96

MEMORANDUM Opinion and Order; City of Chicago's motion for summary judgment 64 72 is granted. The 8/5/2019 trial date is stricken. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 6/14/2019:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICARDO GOMEZ,

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Plaintiff,
v.
CITY OF CHICAGO, FIRE DEPARTMENT
Defendant.

No. 16 C 7743
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Plaintiff Ricardo Gomez brings this lawsuit against the City of Chicago (the
“City”) alleging a hostile work environment under Title VII of the Civil Rights Act of
1964. The City moved for summary judgment. R. 64; R. 72. 1 For the reasons set forth
below, the Court grants the City’s motion.
Standard
Summary judgment is appropriate “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); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court considers the entire evidentiary record and must view all of
the evidence and draw all reasonable inferences from that evidence in the light most
favorable to the nonmovant. Horton v. Pobjecky, 883 F.3d 941, 948 (7th Cir. 2018). To
defeat summary judgment, a nonmovant must produce more than a “mere scintilla of

The City’s motion was initially filed in redacted form, and then refiled under seal
with the Court’s permission and without redaction.
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evidence” and come forward with “specific facts showing that there is a genuine issue
for trial.” Johnson v. Advocate Health and Hosps. Corp., 892 F.3d 887, 894, 896 (7th
Cir. 2018). Ultimately, summary judgment is warranted only if a reasonable jury
could not return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
Background
The following facts are undisputed unless otherwise noted. Ricardo Gomez is a
Puerto Rican/Hispanic firefighter who began training with the City of Chicago Fire
Department (“CFD”) in May 2005 and has worked in that capacity ever since. R. 73
¶¶ 1, 4. Gomez was initially assigned to Engine 57 located at 1244 North Western
Avenue before his transfer to Engine 110 at 2322 West Foster Avenue in or around
November 2010. 2 Id. ¶¶ 5, 6.
The 2012 note and investigation. According to Gomez, on or about January
28, 2012 and while at Engine 110, a form completed by CFD personnel to request a
transfer to another firehouse with the word “spic” written on it fell out of his locker.
Id. ¶ 7. Gomez was familiar with the CFD’s General Orders (“G.O.’s”) and with the
policies concerning discrimination, harassment and reporting. Id. ¶ 12. G.O. 93-018,
effective at that time, expressly prohibited “[d]iscrimination and/or harassment on
the basis of race, color, religion, sex, national origin, age, ancestry,” and promised
that “[t]he department takes each and every complaint of discrimination and/or
harassment seriously,” and that each one would be “thoroughly investigated.” Id. ¶¶
2

The capitalized term “Engine” in this context refers to a specific fire station.
2

8, 10. G.O. 93-018 allowed employees to file a complaint of discrimination or
harassment in multiple ways, including by notifying department supervisors or
through the appropriate grievance procedure, and provided that a complaint received
by supervisors would “confidentially” and immediately be forwarded to the
appropriate Deputy Fire Commissioner, who would in turn designate an investigator.
Id. ¶ 11.
Consistent with G.O. 93-018, Gomez reported the note to his superior officer,
Lieutenant Kevin Peters. Lt. Peters in turn reported it to Battalion Chief Joseph
Santucci that same day. 3 Id.; R. 82-2 ¶ 20. And Lt. Peters read G.O. 93-018 to Gomez,
and then to all employees present at Engine 110 that day, indicating while
referencing its provisions that any harassment was prohibited and would not be
tolerated. R. 73 ¶ 8.
Battalion Chief Santucci immediately prepared an incident report, ultimately
causing the Internal Affairs Division to open an investigation. Id. at 13. During the
investigation, Gomez alleged that he had received other (blank) transfer forms while
at Engine 110: in his work boots in May 2011; in his locker in October 2011; and in
his work coat in January 2012. He also reported that he found a water bottle in his
work boots in January 2012. Id. ¶ 14. Gomez had not reported these or any other
incidents previously. Id. ¶ 15. Gomez complained to investigators that he “didn’t feel

The CFD is structured as follows, from lowest to highest rank: firefighter, engineer,
lieutenant, captain, battalion chief, deputy district chief, district chief, assistant
deputy fire commissioner, deputy fire commissioner, first deputy fire commissioner
and fire commissioner. R. 73 ¶ 27.

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like part of the clique,” and that neither the Caucasian firefighters nor Hispanic
engineer Alfredo Ruiz spoke to him. R. 82-2 ¶ 4; R. 73 at Ex. L, p. 2-3. Gomez was
interviewed twice in February 2012 and a third time in October 2012. R. 73 ¶¶ 18,
19. The IAD investigator gave Gomez her business card and advised him multiple
times over the course of the investigation that he could contact her at any time. But
Gomez made no further complaints. Id.
In addition to interviewing Gomez, the IAD investigator also interviewed
Battalion Chief Santucci and Lt. Peters once Santucci returned from medical leave
in September 2012. Id. ¶ 19. And during the weeks following Gomez’s report, Lt.
Peters spoke to all Engine 110 firefighters, including minority firefighters with
Hispanic surnames. None had experienced any racially offensive, harassing or
derogatory conduct. Nor had any witnessed other firefighters treating Gomez in an
offensive or racially discriminatory manner. Id. ¶ 9.
Gomez requested a transfer out of Engine 110 on or about February 12, 2012.
He was thereafter permitted to work temporarily at other engines, and was
transferred to Engine 89 at 3945 West Peterson Avenue on a permanent basis in April
2012. Id. ¶ 17. The IAD closed its investigation in January 2013 without taking
further action. Id. ¶¶ 20, 21.
The 2014 note and investigation. On or about April 27, 2014, more than two
years after his January 2012 report and while still assigned to Engine 89, Gomez
showed his commanding officer Lt. Ted Maj a transfer form that he alleged fell out of
his equipment that day. On it were the handwritten words “get out and swim back to

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your sh*t hole.” Id.¶ 22. Approximately one year before, the CFD had rescinded G.O.
93-018 and adopted in its place G.O. 13-006, entitled “Discrimination/Harassment
Investigation Policy and Procedures.” G.O. 13-006 incorporated the City’s Diversity
and Equal Employment Opportunity Policy (“EEO Policy”), the purpose of which was
to “provide [City employees] an effective means for the resolution of complaints of
discrimination and harassment.” Id. ¶¶ 25, 26. An employee can file a complaint of
discrimination, harassment or retaliation under G.O. 13-006 and the EEO Policy by
notifying “CFD supervisors, CFD’s EEO Liaison (the Deputy Commissioner of CFD
Human Resources), City of Chicago Department of Human Resources,” or by union
grievance. Id. ¶ 27 and Ex. U, p. 2. Unlike G.O. 93-018, G.O. 13-006 and the EEO
Policy it adopts specifies that the EEO Division shall initiate and direct the
investigation, and that supervisors who become aware of conduct that may violate
the EEO Policy must report it to “a Department Liaison, or to the EEO Officer or
EEO Deputy” or face potential discipline. Id. at Ex. U, p. 2 and Ex. T, p. 4-5.
Lt. Maj informed everyone present at the morning call that day about the note,
and reiterated that discrimination would not be tolerated while reviewing the
relevant anti-harassment and discrimination policies. Id. ¶ 22 and Ex. O, p. 2-3. He
interviewed almost all of Engine 89’s members. None admitted to leaving the note.
Id. ¶ 22. Lt. Maj also informed his commanding officer, Captain Curley—Battalion
Chief Kurt Nelson’s reliever—about the note, and notified Battalion Chief Nelson
when he returned to Engine 89 on or about April 30. That same day, Battalion Chief
Nelson informed Deputy District Chief Hoyle Marshall and Assistant Deputy Fire

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Commissioner Mark A. Nielsen about the note, and forwarded Gomez’s complaint to
CFD’s Internal Affairs Division. Id. ¶¶ 23, 24, 28. Five days later on May 5, 2014,
Assistant Commissioner for the Internal Affairs Division Steven M. Malec notified
EEO officer Abel Leon—who oversaw the EEO Division investigations at the time—
of Gomez’s complaint. Id. Gomez was then transferred to Engine 86 at 3918 North
Harlem Avenue in May or early June 2014. Id. at Ex. X, p. 3.
The EEO Division commenced its investigation on June 18, 2014 by
telephoning Gomez to clarify his allegations. Gomez was interviewed in person the
next day. R. 73 ¶¶ 29, 30. During the interview, Gomez told investigators that he
suspected that David Comiskey—a Caucasian fellow firefighter of the same rank—
wrote the note, and reported for the first time that Comiskey also swore at him and
was “derogatory and belittling.” Id. ¶¶ 31, 32, 33. According to Gomez, Comiskey
never referenced Gomez’s nationality or ethnicity when he swore at him, and Gomez
would respond either by ignoring Comiskey, or swearing back. Id. ¶ 33. Gomez also
complained that Comiskey singled him out for wearing casual clothes, but could not
recall complaining about it previously. Id. ¶ 47. Gomez told the investigators that he
felt “like [Comiskey] had it in for me from day one, whether it’s personal, because I’m
Hispanic, . . . he didn’t like how I looked or talked I don’t know.” Id. ¶ 32.
Gomez complained about other acts alleged to have occurred at Engine 89,
including finding a spoiled banana in his pants pocket in October 2013, a transfer
form pasted to his locker on February 8, 2014, a nail in his boot on February 14, 2014,
and that his helmet was tampered with and his mask pulled out of its pouch. Id. ¶¶

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35, 50. Gomez accused Comiskey of having something to do with the alleged
equipment tampering. Id. He further stated that he found blank transfer forms in his
gear or locker every couple of months for about 2 years and that orange stickers used
for newly hired firefighters were placed on his helmet and he was treated like a rookie
despite having 9 years on the job. Id. ¶¶ 36, 38. Gomez did not report these incidents
previously because he is a “big boy” and did not want to report “every little incident,”
so he just “let it go.” Id. ¶ 35 and Ex. X, p. 5; R. 82-1 ¶ 35. Gomez told investigators
that other than the January 2012 and April 2014 notes, he had reported no other
notes or incidents of racial or ethnic harassment. R. 73 ¶ 36.
Gomez also described an incident with Comiskey that occurred while the 2012
investigation was ongoing in which Lt. Manuel Soto, who was relieving for his and
Comiskey’s regular supervisor, Lt. Richard Lynch, sent Gomez upstairs to rest
because he was not feeling well. Id. ¶ 41. He claimed Comiskey got on the microphone
in response and said “Hey f*ckin Gomez, why don’t you f*ckin lay up,” by which he
meant take time off for medical reasons. Id. Gomez reported that he then came down
to the kitchen to confront Comiskey, and Comiskey either “pretend[ed] to be cooking
with [a] knife or us[ed] it to threaten me.” Id. at Ex. X, p. 5. The two men argued, and
Lt. Soto intervened, telling Gomez to leave the kitchen, and Comiskey that he was
“not going to have this stuff at work.” Id. ¶¶ 40, 43, 44. The knife did not touch Gomez.
This was the first time Gomez reported the incident. Id. ¶¶ 43, 45. Gomez also told
investigators that earlier that day and in violation of CFD policy, Comiskey suggested
that he not be in the “food club,” a group whose members contribute money toward

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meal preparation. R. 73 ¶ 46 and Ex. E, p. 74; R. 82-2 ¶ 5. Gomez could not recall
whether he had previously reported being excluded from the club. Id. at Ex. E, p. 77.
When interviewed about the knife incident, Lt. Soto said that in addition to
swearing at Gomez and telling him to go “lay up,” Comiskey called out on the PA
“motherf*cker” and “lazy a** prick spic.” R. 82-2 ¶¶ 9, 10. He concluded that “race
was the reason Comiskey was treating [Gomez] this way,” but also stated that “[o]ther
than during this heated argument,” he had not heard “this type of racial slur” from
Comiskey. R. 82-1 ¶ 44; R. 82-6, p. 3. Lt. Soto did not report the incident to anyone at
the time. The parties debate whether he should have. R. 82-2 ¶ 15; R. 93 ¶ 15.
Gomez and Comiskey’s then-supervisor Lt. Lynch also witnessed arguments
between Comiskey and Gomez. Lt. Lynch specifically recalled intervening in a
dispute in which Comiskey critiqued Gomez’s job performance. Lt. Lynch admonished
Comiskey and spoke to Gomez about the need to do his fair share of daily chores and
tasks. R. 73 ¶ 48 and Ex. Y, p. 3; R. 82-1 ¶ 48. Lt. Lynch believed Gomez and Comiskey
had different work ethics and personalities. R. 73 ¶ 34. Lt. Lynch had never observed
or heard any comments about race or ethnicity, and nor had Gomez ever complained
to him about racial discrimination or harassment by Comiskey or anyone else. Id. ¶¶
33, 34. Indeed, while Gomez once told Lt. Lynch about a blank transfer form he had
received, he also told Lt. Lynch that it was “not a big deal,” and did not allege that it
was motivated by his race or national origin. Id. And Gomez admitted both to EEO
Division investigators and at his deposition that he had never heard Comiskey use
any racial language. Id. ¶ 49.

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In addition to his complaints about Comiskey, Gomez alleged for the first time
that fellow firefighter James Pack harassed him in March or April 2014, telling
Gomez to “get down here and help” clean up Pack’s mess. Id. ¶ 37. According to
Gomez, Pack also made jokes about Hispanic people to others, which Gomez found
offensive but chose to “laugh[ ] off” rather than complain. Id. ¶¶ 37, 39.
Gomez also reported that unidentified Caucasian firefighters said the “n-word”
every couple of days as well as “beaner” and “Nigger plumb,” including in the presence
of unidentified officers. Id. ¶ 40. He stated that the comments were not directed at
anyone in particular because “they know they will lose their job for that.” Gomez could
not provide dates or identify any witnesses, and had not previously reported the
comments. Id. But Gomez reported that “things are fantastic at [his] new firehouse”
(referring to Engine 86). Id. at Ex. X, p. 7.
Gomez was transported from CFD’s Medical Division to a hospital because of
high blood pressure in June 2014, and took medical leave until May 2015. R. 82-2 ¶¶
31, 32; R. 93 ¶¶ 31, 32. 4 Gomez was interviewed for a second time in September 2014
regarding discipline he received during his medical leave that he alleged was in
retaliation for filing the 2014 EEO Division complaint. Id. ¶ 53. And Gomez was
interviewed a third time in May 2015 after returning to Engine 86 from medical leave.
During his leave, Gomez saw his primary care physician Dr. John Lee for what Dr.
Lee diagnosed as work-related stress and anxiety based on Gomez’s representations
to him. R. 82-10, p. 75. Gomez’s former primary care physician Dr. Salvador Gutierrez
testified at his deposition that Gomez had multiple high blood pressure readings even
before his 2005 hire date, and that he had instructed Gomez to track his blood
pressure as early as September 2006. R. 93 ¶ 31 and Ex. 3, p. 21:22-23:9, 88:13-89:11.
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During his deposition, Gomez stated that his work environment at that time “may
have been” better. Id. ¶¶ 54, 55 and Ex. E, p. 178-79. The EEO Division conducted a
fourth and final in-person interview with Gomez in March 2016. At that time, he
stated that he did not remember Comiskey ever saying “spic,” “lazy f*cking spic,”
“lazy a** prick spic,” “go back with your people,” or “lazy spic” during the 2012 knife
incident. Id. at Ex. BB, p. 2. Nor could he recall whether anyone had ever overheard
Comiskey swearing at him, and “couldn’t tell” if Comiskey was “using that language
for a racial reason.” He also did not “know why Comiskey bullied and harassed” him,
and concluded that “for whatever reason he had it in for me.” Id. at Ex. BB, p.5.
Gomez reiterated that he did not report every incident because he is a “big boy,” not
a “crybaby” or “whiner,” “didn’t want to report every little thing,” and “it doesn’t
bother me.” 5 Id. at Ex. BB, p. 2.
Ultimately, Comiskey was suspended for six days for violations of CFD rules
and regulations, including allegations that potentially fell under the City’s Violence
in the Workplace Policy. Id. ¶ 60; R. 82-2 ¶ 28. Comiskey’s suspension was not
imposed under the EEO Policy. R. 82-2 ¶ 29. But the entire CFD nevertheless
underwent training in April 2018 developed in part because of Gomez’s 2014
complaint and the subsequent EEO investigation. R. 73 ¶ 61. The training addressed
(among other things) diversity and inclusion, discrimination and harassment based

Additional interviews during the EEO investigation included Pedro Hernandez in
August 2014 and again in July 2016, Manuel Soto in August 2014 and again in May
2016, Ted Maj in October 2014 and again in August 2016, David Comiskey in October
2014, James Pack in July 2015, and Julio Sanchez, Jr. in April 2016. Id. ¶ 52.

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on all protected categories, retaliation, resources for victims, and mandatory
responses by officers. Id. Online training was offered in November 2018 for those
unable to attend in April. Id.
Gomez filed a charge of discrimination with the Equal Employment
Opportunity Commission in October 2014. 6 The EEOC issued a right to sue letter in
May 2016. Id. ¶ 59. Gomez then filed this lawsuit in August 2016, alleging civil rights
violations under Title VII, Section 1981, Section 1983 and state law. R. 1. The Court
dismissed Gomez’s Section 1981, Section 1983 and state law claims on January 1,
2017, leaving only the Title VII hostile work environment claim that is the subject of
the City’s summary judgment motion. See generally R. 20. During his March 2018
deposition, Gomez alleged for the first time that throughout his first day on the job
in November 2005, a firefighter called him “spic.” Gomez could not name the
firefighter or any witness, and had not previously reported the incident. R. 73 ¶ 62.
Analysis
I.

Local Rule 56.1
As an initial matter, the Court must address Gomez’s failure to comply with

Local Rule 56.1. The City correctly points out that not only did Gomez fail to cite to a
single paragraph of his Local Rule 56.1 statement of facts to support the factual
assertions made in his brief, but also his 56.1 statement of additional facts did not
adhere to the local rules and the Court’s standing order because in it Gomez

Gomez initially filed his charge of discrimination unsigned. A signed copy was filed
in November 2014.

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repeatedly failed to cite to specific lines, paragraphs or pages of the record as
required. See L.R. 56.1(b)(3) (requiring a non-moving party to support its facts with
“specific references to . . . parts of the record”). The Seventh Circuit has “consistently
and repeatedly upheld a district court’s discretion to require strict compliance with
its local rules governing summary judgment.” Bordelon v. Chicago Sch. Reform Bd.
of Trustees, 233 F.3d 524, 527 (7th Cir. 2000) (citing Midwest Imports, Ltd. v. Coval,
71 F.3d 1311, 1316 (7th Cir. 1995)). As this Court’s standing order makes clear, “Local
Rules are not mere technicalities. Failure to abide by the Local Rules may result in
the Court striking briefs, disregarding statements of facts, deeming statements of
facts admitted, and denying summary judgment.” Nevertheless, as explained below,
even if Gomez had complied with the local rules and this Court’s standing order by
properly attributing the factual assertions in his brief and those in his statements of
facts, the Court can discern no genuine dispute of material fact sufficient to defeat
summary judgment.
II.

Merits
To establish a prima facie case of hostile work environment, Gomez must show:

(1) that he was subject to unwelcome harassment; (2) the harassment was based on
his national origin or ethnicity; (3) the harassment was so severe or pervasive as to
alter the conditions of his work environment by creating a hostile or abusive
situation; and (4) that there is a basis for employer liability. Zayas v. Rockford Mem’l
Hosp., 740 F.3d 1154, 1159 (7th Cir. 2014) (citing Lucero v. Nettle Creek Sch. Corp.,
566 F.3d 720, 731 (7th Cir. 2009)). Additionally, the conduct complained of must be

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both subjectively and objectively offensive. Vance v. Ball State Univ., 646 F.3d 461,
469 (7th Cir. 2011). The City argues that Gomez’s hostile work environment claim
fails under the second, third, and fourth elements, and that there is no genuine issue
of material fact to suggest that the alleged harassment was either objectively or
subjectively offensive. See generally R. 73. 7 The Court’s analysis will focus on the
fourth requirement: employer liability.
Gomez alleges that fellow firefighters David Comiskey and James Pack
perpetrated harassment. There is no dispute that these individuals were co-workers,
not supervisors. And Gomez does not name any other alleged harasser. As such, to
establish a basis for employer liability, Gomez must prove that the City was negligent
in discovering or remedying harassment. Montgomery v. Am. Airlines, Inc., 626 F.3d
382, 390 (7th Cir. 2010) (citing Andonissamy v. Hewlett–Packard Co., 547 F.3d 841,
848 (7th Cir. 2008)); see also Cerros v. Steel Techs., Inc., 398 F.3d 944, 952 (7th Cir.
2005) (“An employer satisfies its legal duty in coworker harassment cases ‘if it takes
reasonable steps to discover and rectify acts of . . . harassment of its employees.’”
The City also contends that the allegations pre-dating those made in connection
with Gomez’s January 2012 complaint to the City are time-barred because the
exception to the continuing violation rule for significant temporal time gaps between
acts applies. See R. 72 at 16-17 (citing Milligan-Grimstad v. Stanley, 877 F.3d 705,
712 (7th Cir. 2017), Tinner v. United Ins. Co. of Am., 308 F.3d 697, 709 (7th Cir. 2002),
and Selan v. Kiley, 969 F.2d 560, 567 (7th Cir. 1992)). Gomez does not argue
otherwise. Accordingly, because the Court considers Gomez to have waived the
argument and finds merit in the City’s position, the Court would decline to consider
the allegations from 2005 even if it found a basis for employer liability. See Citizens
for Appropriate Rural Roads v. Foxx, 815 F.3d 1068, 1078 (7th Cir. 2016) (plaintiff’s
failure to respond to defendant’s argument on summary judgment results in waiver);
see also Selan, 969 F.2d at 567 (2-year gap between allegations was a “considerable
separation [that] weigh[ed] heavily against finding a continuing violation”).

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(quoting Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir.
1998))). “[P]rompt investigation of alleged misconduct [is the] hallmark of reasonable
corrective action.” Cerros, 398 F.3d at 953-54. “Notice that is sufficient to trigger
employer liability must be given to either someone with authority to take corrective
action or, at a minimum, someone who could ‘reasonably be expected to refer the
complaint up the ladder to the employee authorized to act on it.’” Parker v. Side by
Side, Inc., 2014 WL 2932211, at *11 (N.D. Ill. June 27, 2014) (quoting Lambert v. Peri
Fireworks Sys., Inc., 723 F.3d 863, 866-67 (7th Cir. 2013)). If the employer has
established procedures for reporting complaints of harassment, “the complainant
ordinarily should follow that policy in order to provide notice sufficient for the
employer to be held responsible.” Lambert, 723 F.3d at 867. The focus of the notice
inquiry, however, is “on whether the complainant adequately alerted his employer to
the harassment, ‘not whether [the complainant] followed the letter of the reporting
procedures set out in the employer’s harassment policy.’” Parker, 2014 WL 2932211,
at *11 (quoting Cerros, 398 F.3d at 952-53). But “[a]n employer is not liable for coemployee racial harassment ‘when a mechanism to report the harassment exists,
[and] the victim fails to utilize it.’” Yancick v. Hanna Steel Corp., 653 F.3d 532, 549
(7th Cir. 2010) (quoting Durkin v. City of Chi., 341 F.3d 606, 612-13 (7th Cir. 2003)).
The undisputed evidence shows that Gomez made just two reports of
harassment: the first in January 2012, and the second in April 2014. The undisputed
evidence also shows that the City responded promptly to each by reiterating with the
relevant workforce that harassment and discrimination would not be tolerated and

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reviewing applicable policies with them on the very same date. Thereafter, the City
commenced investigations into both the notes that caused Gomez to complain, and
the additional allegations of harassment he made during those investigations, some
of which had occurred years prior. And Gomez was promptly transferred to new fire
stations in both instances. The Court reviews each report and subsequent
investigation, and the parties’ arguments, in more detail below.
The 2012 investigation. First, the City contends that it took prompt,
appropriate corrective action when Gomez reported harassment in January 2012
sufficient to preclude a finding of employer liability. Following his 2012 complaint,
Lieutenant Peters immediately informed Battalion Chief Joseph Santucci and read
then-applicable G.O. 93-108 to everyone at the firehouse, informing them that
harassment was prohibited and would not be tolerated. He questioned those present
about the note, but no one reported having any knowledge of it. Lt. Peters also
informed Battalion Chief Joseph Santucci, which ultimately lead to a full
investigation and report by the Internal Affairs Division, an investigation that was
initiated only two days after Gomez found the note. During the weeks thereafter, Lt.
Peters spoke to all firefighters assigned to Engine 110, including minority firefighters
with Hispanic surnames, asking whether any of them had experienced racially
offensive, harassing or derogatory conduct. None had, and nor had any witnessed
others treating Gomez in any offensive or racially discriminatory manner. During
this same period, Gomez was transferred out of Engine 110 at his request, and

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subsequently told IAD investigators that he was very happy and had no additional
complaints.
But Gomez nevertheless finds fault in the City’s response to his complaint.
First, Gomez contends that it violated G.O. 13-006 because the investigation was
conducted by the Internal Affairs Division instead of the EEO Division. R. 82 at 1011. But G.O. 13-006 took effect in April 2013 and was not applicable at that time, and
the Court finds the City’s response was reasonable even if it had been. See Milligan
v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 387 (7th Cir. 2012) (employer’s “failure to
follow internal policy does not matter so long as the employer’s response is otherwise
reasonable under Title VII.”). Gomez also takes issue with the fact that some of the
interviews were not conducted until September 2012, some 8 months after Gomez
reported the note. But the Court does not lay blame on the City here; the delayed
interviews with Battalion Chief Santucci and Lieutenant Peters were a result of
Santucci’s medical leave. And, as noted, Gomez had been transferred to a new fire
station months before, and raised no new allegations in the interim despite that he
knew how and to whom to report them. On these facts, the Court finds that the City
was not negligent in either discovering or remedying the alleged harassment, and
that no basis for liability lies with respect to the 2012 investigation.
The 2014 investigation. The City contends that its response to Gomez’s 2014
complaint was also reasonable and prompt under the circumstances. It is undisputed
that Gomez’s 2014 report led him to raise additional allegations of harassment for
the first time, some of which arose (but were not reported) during the earlier 2012

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investigation. Those allegations and the note itself were the subject of a similar
investigation to that conducted in 2012. Specifically, Lt. Maj referenced the applicable
General Order in admonishing those present at role call the day of Gomez’s
complaint, informing them that discrimination would not be tolerated. Lt. Maj also
notified Captain Curley and the relieving chief about the incident that day, and
informed the regular Battalion Chief Kurt Nelson when he returned three days later.
In turn, Nelson immediately notified Deputy District Chief Hoyle Marshall and
Assistant Deputy Fire Commissioner Mark A. Nielsen, and the EEO Division
commenced an investigation into Gomez’s allegations shortly thereafter. And Gomez
was assigned to a new fire station which he reported was “fantastic.”
But Gomez contends that issues remain for the jury. Gomez’s principal
arguments concern the fact that during the 2014 investigation, Lt. Soto reported that
he heard, but did not report, Comiskey directing racially charged language at Gomez
during the knife incident in 2012. First, Gomez contends that Lt. Soto’s failure to
report that incident at the time violated the EEO Policy requiring supervisors to
report potential discrimination and/or harassment even if the employee himself does
not. But again, Gomez argues this under an apparent misconception that G.O. 13006 adopting the EEO Policy applied in 2012, when it did not.
Gomez also argues that the City’s failure to investigate and take corrective
action with respect to the knife incident in 2012 was negligent, and that had Lt. Soto
reported it and the City investigated it at that time, additional harassment—pointing
specifically to the 2014 note—may have been prevented. In other words, Gomez seeks

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to impute knowledge to the City through Lt. Soto. In response, the City argues that
even if Comiskey used the language Lt. Soto reported, it cannot be used to support
Gomez’s claims because Gomez did not hear it himself and nor was he made aware of
it. The Court agrees that remarks made outside of Gomez’s hearing are not
actionable, and there is no dispute that Gomez did not hear the remarks Lt. Soto
contends Comiskey made. Nor did he ever hear Comiskey use racial language. See R.
73 ¶¶ 33, 49; Whittaker v. N. Ill. Univ., 424 F.3d 640, 645 (7th Cir. 2005) (no hostile
work environment based on racial remarks “made outside [plaintiff’s] presence”
where “no evidence that [plaintiff] was aware of these remarks”); see also Mannie v.
Potter, 394 F.3d 977, 983 (7th Cir. 2005) (environment not objectively hostile where
“[m]ost of the conduct that forms the basis of [plaintiff’s] claim consists of derogatory
statements made . . . out of [plaintiff’s] hearing” and the rest is “isolated and not
particularly severe”); McLaughlin v. Chi. Transit Auth., 263 F. Supp. 2d 1130, 113637 (N.D. Ill. 2003) (comments “white b*tch” and “pushy female” made outside of
plaintiff’s presence not actionable harassment). It follows that those remarks and Lt.
Soto’s failure to report them cannot form the basis for the City’s liability, including
because the focus of the analysis is on the employee’s report, and here there was and
could be none. See Yancick, 653 F.3d at 549 (“An employer is not liable for co-employee
racial harassment ‘when a mechanism to report the harassment exists, but the victim
fails to utilize it.’” (quoting Durkin, 341 F.3d at 612-13)). Gomez offers no authority
to the contrary (or at all) on this point.

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Gomez also argues that the 2014 investigation was negligent because it
reached the wrong result. More specifically, Gomez contends that the City failed to
give enough weight to Lt. Soto’s statement that Comiskey’s behavior and comments
toward him the day of the knife incident were physically threatening and racially
motivated. But Gomez again ignores the fact that he himself failed to report the knife
incident and did not hear the comments Lt. Soto asserts were made. Nor is there any
other evidence in the record to support Lt. Soto’s allegations. Moreover, when Gomez
finally did report the knife incident, the City conducted a thorough investigation—
notwithstanding that Gomez himself had not tied and could not tie the incident to
any discriminatory animus—and ultimately imposed discipline despite that the
conduct had occurred years earlier. The Court finds no negligence here.
Finally, again failing to cite any authority, Gomez argues that the 2014
investigation, resulting in the 2017 suspension of firefighter Comiskey for conduct
occurring in 2012 and causing (in part) 2018 workplace training on discrimination,
harassment and retaliation, was too lengthy to deem the City’s response “prompt.”
But the investigation’s duration resulted in part from the sheer number of issues
Gomez raised for the first time (including the knife incident and the additional
allegation of retaliation during his lengthy medical leave). And there is no dispute
that the City commenced remediation efforts the day of Gomez’s initial April 2014
report, including by reinforcing the policy against discrimination and harassment
with all staff present and emphasizing that such actions would not be tolerated, and
reporting the complaint up the chain as required. Nor can Gomez point to any harm

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resulting from the delay. To the contrary, Gomez reported that his new assignment
at Engine 86 was “fantastic,” and other than the alleged retaliation during his
medical leave (which is not part of his complaint), raised no new complaints. Simply
put, “[a]lthough the process may have been imperfect, it was not negligent.” Williams
v. Waste Mgmt. of Ill., 361 F.3d 1021, 1030 (7th Cir. 2004) (while the investigation
was “by no means textbook in its execution, we cannot ignore . . . the undisputed fact
that [the employer] took prompt action” and that a “stern verbal warning . . . had both
the purpose and effect of eliminating further race-based harassment”); see also
Cerros, 398 F.3d at 954 (“the efficacy of an employer’s remedial action is material to
our determination whether the action was ‘reasonably likely to prevent the
harassment from recurring’” (quoting Williams, 361 F.3d at 1029 (7th Cir. 2004)));
Hostetler v. Quality Dining, Inc., 218 F.3d 798, 809 (7th Cir. 2000) (delay in
responding to harassment complaint was not negligent where there was “no evidence
that [plaintiff] was in any way injured by [employer’s] failure to act more quickly,”
and “no proof . . . that the harassment continued” after the report.). Accordingly, even
if Gomez can otherwise establish that a hostile work environment existed (a point on
which the Court takes no position), his claim necessarily fails because no reasonable
jury could find that the City was negligent either in uncovering, or responding to,
Gomez’s complaints.

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Conclusion
For these reasons, the Court grants the City’s motion for summary judgment.
R. 64; R. 72.
ENTERED:

_______________________
Honorable Thomas M. Durkin
United States District Judge
Dated: June 14, 2019

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