Edmond et al v. City of Chicago, The et al

Filing 327

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 4/12/2024: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants the City's motion for summary judgment [dkt. no. 291] on the plaint iffs' claims of discrimination involving denial of promotion, overtime pay, shift assignment, and acting up; Anderson's discriminatory discipline claims; and Edmond and Smith's hostile work environment claims. The Court denies the City 's motion for summary judgment on Ealy, Cooper, and Glenn's discriminatory discipline claims and the remaining plaintiffs' hostile work environment claims. Those claims will proceed to trial. Counsel are directed to promptly confer r egarding the anticipated witnesses and anticipated length of trial given the dismissal of a number of claims, and they are to file a joint status report in this regard by no later than April 19, 2024. The Court notes that it likely will be moving the start date for the trial to Wednesday, June 5, 2024. A telephonic status hearing is set for April 22, 2024 at 9:00 a.m., using call-in number 888-684-8852, access code 746-1053. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DERRICK EDMOND, KATHERINE
EALY, EDDIE COOPER, JR., VICKI
HILL, ROBERT T. LAWS, JR., ANTON
GLENN, VERONICA SMITH, DONALD
ANDERSON, and DAVID HENRY,
Plaintiffs,
vs.
THE CITY OF CHICAGO,
Defendant.

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Case No. 17 C 4858

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
The plaintiffs in this case are current and former employees at the City of
Chicago's Department of Water Management (DWM). They sued the City of Chicago
and multiple individual defendants on behalf of a putative class for violations of 42
U.S.C. §§ 1981 and 1983 and the Illinois Civil Rights Act of 2003 (ICRA). The plaintiffs'
claims include allegations under Monell v. Department of Social Services of the City of
New York, 436 U.S. 658 (1978), that the City's policies or customs caused violations of
the plaintiffs' constitutional rights.
On November 15, 2018, Judge Joan Gottschall, to whom the case was then
assigned, granted the defendants' motion to dismiss in part. See Edmond v. City of
Chicago, No. 17 C 4858, 2018 WL 5994929 (N.D. Ill. Nov. 15, 2018). Following Judge's
Gottschall's order, the plaintiffs voluntarily dismissed their claims against the individual

defendants and moved to certify various classes under Federal Rules of Civil Procedure
23(b)(2) and 23(b)(3). On June 6, 2023, this Court denied the plaintiffs' motion for class
certification. See Edmond v. City of Chicago, No. 17 C 4858, 2023 WL 3847098, at *1
(N.D. Ill. June 6, 2023) (Kennelly, J.).
The remaining claims are as follows. Count 1 of the plaintiffs' third amended
complaint is alleged as a "hostile work environment" claim under section 1983,
asserting violations of the Constitution’s Equal Protection and Due Process Clauses.
Count 2 asserts a claim on the same theory, but under section 1981 "via" section 1983.
Count 3 asserts a discrimination claim under the Fourteenth Amendment and section
1983, and Count 4 asserts the same allegations as a claim under section 1981 via
section 1983.
Background
Plaintiffs Derrick Edmond, Katherine Ealy, Vicki Hill, Robert T. Laws, Jr., Eddie
Cooper, Jr., Anton Glenn, David Henry, Veronica Smith, and Donald Anderson filed the
present lawsuit alleging that they were subject to racial discrimination and a hostile work
environment during their tenure as DWM employees. All nine plaintiffs are African
American. The following facts are undisputed unless otherwise noted. 1

Both parties allege that certain facts they present should be deemed admitted due to
the other party's failure to comply with Local Rule 56.1. Pls.' Resp. to Def.'s Mot. for
Summ. J. at 7-14; Def.'s Reply at 4 n.3. But "the decision whether to apply the rule
strictly or to overlook any transgression is one left to the district court's discretion."
Higbee v. Sentry Ins. Co., No. 97 C 1349, 2003 WL 22220161, at *3 (N.D. Ill. Sept. 24,
2003) (Kennelly, J.) (quoting Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir.
1995)). The Court opts not to penalize either party for noncompliance with Local Rule
56.1.
1

2

A.

The Department of Water Management 2
DWM is tasked with the production and delivery of drinking water to the Chicago

area as well as the delivery of sewage and storm water to the Metropolitan Reclamation
District. The DWM employs approximately 2,000 people across five bureaus: the
Bureau of Administrative Support (BAS), the Bureau of Meter Services (BMS), the
Bureau of Operations and Distribution (BOD), the Bureau of Engineering Services
(BES), and the Bureau of Water Supply (BWS). DWM operates two water treatment
plants: the Jardine water purification plant (JWPP) and the Sawyer water purification
plant (SWPP).
DWM is headed by a Commissioner. The First Deputy Commissioner reports to
the Commissioner. Two managing deputies report to the First Deputy Commissioner.
A deputy commissioner oversees each bureau and reports to the managing deputies.
Tom Powers served as the DWM commissioner, and Barrett Murphy served as the First
Deputy Commissioner from 2011 to 2016. In 2016, Murphy was appointed
Commissioner and served in that role until his resignation in 2017. William Bresnahan
served as one of the Managing Deputy Commissioners from 2011 until his resignation
in 2017. During the time period relevant to this suit, Julie Hernandez-Tomlin served as
the other Managing Deputy Commissioner, Alan Stark served as a deputy
commissioner of BWS, and Dwayne Hightower served as a deputy commissioner of
BOD. Powers, Murphy, Bresnahan and Stark are white. Hightower is African
American.

In 2002, three City of Chicago departments merged to create the new Department of
Water Management. For clarity's sake, this Court refers to the pre-2002 iterations of the
Department of Water Management as DWM.
2

3

1.

Personnel policies and practices

As a department of the City of Chicago, DWM is subject to the City's personnel
rules and hiring plan. The City's hiring plan addresses employment actions including
hiring, transfers, and "acting up," a process by which an employee temporarily works in
a higher-graded position. Def.'s L.R. 56.1 Stmt. ¶ 84. The City's personnel rules
"prohibit discrimination on the basis of race, color, sex, and other protected
classifications." Id. ¶ 85. The City's Department of Human Resources (DHR) includes
an Employment Services Division that oversees the City's hiring processes and
monitors compliance with the City's hiring plan.
Applicants apply to DWM positions through Taleo, the City's online job
application system. The City asserts that hiring involves a multi-step process. During
the first two steps, called "screening and scoring," DHR removes unqualified applicants
from the candidate pool. Applicants who pass the "scoring" step reach the "referral"
step. Depending on the position, the referral step can include interviews, tests, or a
lottery. Interviewers provide one of three ratings for all candidates: "recommended,
recommended with some reservations, or do not recommend." Id. ¶ 88. Candidates
with "recommended" ratings are considered "prequalified" for the position. For bid
positions, prequalified candidates are ranked based on seniority; for non-bid positions,
the interviewers exercise their discretion to selected which candidates to offer the
position.
DWM employees are represented by several labor unions and are organized into
collective bargaining units. Each union has a collective bargaining agreement that
governs discipline, overtime, and promotion procedures for its members. For DWM

4

employees, the disciplinary process begins with a notice of pre-disciplinary hearing
(NPDH). An employee who swipes into work late three times within one month receives
an NPDH. NPDHs for issues other than tardiness are issued at a supervisor's
discretion. The City contends that an NPDH "is not a 'formal accusation' or actual
discipline"; it characterizes NPDHs as "a notice that a supervisor believed an employee
committed an infraction and that a pre-disciplinary hearing . . . will be scheduled to
discuss the issue." Def.'s L.R. 56.1 Stmt. ¶ 48. The plaintiffs dispute this description
and contend that an NPDH constitutes a formal accusation of wrongdoing. Pls.' Resp.
to Def.'s L.R. 56.1 Stmt. ¶ 48. Following a disciplinary hearing, an employee may
receive no discipline, a non-disciplinary action such as a warning, or a disciplinary
action. An employee who receives a disciplinary action may appeal the decision.
At DWM, overtime pay, shift assignments and acting up opportunities are
assigned based on a variety of factors. According to the City, "[d]istribution of overtime
is highly situation-specific and is carried out by individual supervisors based on
employees' job titles, seniority, locations, the applicable CBAs, and differences in the
circumstances requiring overtime." Def.'s Mot. for Summ. J. at 49. An employee may
challenge an allegedly improper overtime denial through the union grievance process.
Shift assignments are regulated by collective bargaining agreements and are generally
based on seniority. As for acting up, DWM prepares a list of employees eligible for
acting up opportunities and submits the list to DHR on an annual basis. Employees are
generally selected to act up based on seniority. The plaintiffs dispute that the City
followed its stated policies in assigning overtime, shift assignment, and acting up
opportunities.

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2.

Anti-discrimination policies

The City's DHR includes an Equal Employment Opportunity (EEO) Division. The
EEO division is tasked with enforcing the City's EEO policy, which prohibits
discrimination on the basis of race. Each City employee is required to sign a form
acknowledging receipt of a copy of the City's EEO policy. Each City department is
required to appoint an EEO liaison, who is responsible for reporting discriminatory
conduct and referring discrimination complaints to the EEO division. During the relevant
period, Maureen Egan served as DWM's EEO liaison.
EEO complaints may be submitted through a referral by the EEO liaison,
department personnel, the City's Office of Inspector General (OIG), or the mayor's
office. An employee may also submit a complaint directly, by phone, or by e-mail. The
EEO investigation protocols provide that after a complaint is filed, an investigator will
review the allegations and determine how to proceed with the investigation. An EEO
investigation may involve interviewing witnesses and requesting relevant documentary
evidence, such as photographs and surveillance footage. Once the investigation is
complete, OIG prepares a summary report that describes its findings and
recommendations. The EEO office reviews the report and then sends it to the head of
the relevant department.
In 2014, a DHR deputy commissioner sent an e-mail to multiple department EEO
liaisons, including Egan, noting the importance of EEO training for supervisors and
suggesting that liaisons communicate this to department leadership. Pls.' L.R. 56.1
Stmt. ¶ 119. Egan forwarded this e-mail to Powers, Murphy and Hernandez-Tomlin and
added a message stating that "[t]here does not seem to be much of a plan in place for

6

cycling every supervisor through this training." Id. ¶ 120. In 2017, DWM implemented a
mandatory annual EEO DHR-led training for all employees.
3.

OIG investigation

Sometime before 2017, OIG initiated an investigation into allegations of
discrimination at DWM. During the investigation, the OIG discovered e-mails containing
racially offensive language and photos that had been shared among DWM employees.
Multiple members of DWM's leadership team, including Murphy, Bresnahan, and
Hansen, authored or were copied on several of the e-mails. In particular, Hansen
authored a large share of the e-mails. Murphy testified during his deposition in this case
that it was the "general custom" within DWM to allow Hansen to share these racially
offensive messages without consequence. Pls.' L.R. 56.1 Stmt. ¶¶ 22-23.
OIG filed a report based on its investigation on July 15, 2017. The report
revealed that OIG had "found egregious, offensive racist and sexist e-mails distributed
by and among employees of the Department of Water Management." Id. ¶ 42. The
OIG report noted that the e-mails "extended to senior levels of department
management" and "suggested the existence of an unrestricted culture of overtly racist
and sexist behavior and attitudes within the department." Id. Following the OIG
investigation, nearly a dozen DWM employees were fired or forced to resign, including
Hansen, Powers and Murphy. Mayor Rahm Emanuel promised to "reset" the culture at
DWM, and the City hired a new DWM Commissioner, Randy Conner. Pls.' L.R. 56.1
Stmt. ¶ 33.

7

B.

The plaintiffs
1.

Edmond

Edmond's employment with DWM began in 1991. As of the time of his retirement
in 2017, he was working as an Operating Engineer-Group A (OE-A). Edmond testified
that during his tenure at DWM, deputy commissioner Joseph Lynch routinely referred to
African American employees as "you people." Pls.' L.R. 56.1 Stmt. ¶ 159.
2.

Ealy

DWM hired Ealy in July 1999. She worked as an OE-A from 2002 to 2011, a
Training Assistant Chief Engineer (ACOE) from 2011 to 2017 and a Chief Operating
Engineer (COE) from 2017 until her resignation in 2019. Ealy received a five-day
suspension on November 28, 2018. Managing deputy commissioner Marisol Santiago
issued this suspension to Ealy after a nursing subordinate employee claimed that Ealy
had failed to provide a key to a lactation room. The suspension allegedly was also due
to Ealy's claimed failure to comply with the City's acting up policy. Ealy testified during
her deposition that the subordinate employee lied when she claimed Ealy failed to
provide a key to the lactation room. Ealy does not dispute that she violated the City's
acting up policy, but she testified that she denied acting up opportunities to certain
employees due to their work performance issues.
Ealy applied for promotion to a COE position in April 2014, 2015, and 2016.
After her 2014 application, Ealy was rated "highly qualified" along with five other
candidates. The six highly qualified candidates were ranked by seniority; Ealy was
ranked fifth. The City contends that the position was awarded to the two most senior
applicants. In 2015, Ealy passed the first step of the promotion process along with

8

about twenty other applicants. The City contends that Ealy did not reach the interview
stage because she failed a written test administered on September 22, 2015. Andre
Holland, an African American man, received the promotion.
In 2016, Ealy was one of nineteen applicants to reach the second stage of the
COE hiring process. She passed the written test along with eight other applicants. The
interviews for the position were conducted by Lynch, a white man, Daryl Materre, an
African American man, and Eduardo Salinas, a Hispanic man. Salinas also served as
the hiring manager for this position. After the interviews, Ealy received "recommend"
ratings from Lynch and Materre and a "do not recommend" rating from Salinas.
Thomas Barrett, a white male applicant who ultimately received the position, received a
"recommend" rating from Materre and "recommend with some reservations" ratings
from Lynch and Salinas. The City contends that Barrett received the promotion
because he had the highest seniority of the prequalified applicants.
Ealy testified that she left DWM due to the "harassment" and "racial
discrimination" she was subject to as an employee, as well as DWM leadership's failure
to "erase the racial tension" or address the "culture" at DWM. Pls.' L.R. 56.1 Stmt., Ex.
6 at 18:4-19:5. Ealy testified that while she worked at DWM, white co-workers called
her "Black bitch" rather than her name. Id. at 279:13-24. She also testified that she
heard multiple DWM employees use language that she considered racially derogatory
when referring to African Americans. Ealy testified that she heard John Pope, a deputy
commissioner, Stark, and Lynch use the phrase "you people" to refer to African
American employees, id. at 265:11-16, and that multiple white ACOEs called male

9

African American employees "boys." Id. at 279:5-24. 3 Ealy also testified that
employees saw nooses in the filter building "[a] couple of times." Id. at 251:17-24.
3.

Cooper

Cooper has worked as a water chemist for DWM since 1994. He was appointed
as a water chemist II in January 1996. Cooper is a member of the American Federation
of State County and Municipal Employees (AFSCME) bargaining unit. He applied for
promotions to a water chemist III position in 2013 and 2019. In 2013, Cooper was
interviewed for the position, along with ten other candidates, by Jimmie Julion, an
African American DWM employee and Mohammed Alam, an Asian DWM employee.
Julion and Alam both gave Cooper a "recommended with reservations" rating. Joseph
Washington and Lovely Jacob, who identify as African American and Asian,
respectively, ultimately received recommendations for the promotion. All three
interviewers for the 2019 water chemist III position were African American. Cooper was
not among the four applicants who were rated prequalified for selection. Two African
American employees, one Hispanic employee, and one Asian employee were selected
for the position.
In September 2018, Pope issued Cooper an NPDH for tardiness. At a predisciplinary hearing for his tardiness issues, Cooper called Pope a "dumb ass" and a

In the plaintiffs' statement of additional facts Ealy claims that she also heard
Bresnahan use the phrase "you people." Pls.' L.R. 56.1 Stmt. ¶ 154. But Bresnahan is
not mentioned in the cited portion of Ealy's deposition testimony. See id., Ex. 6 at
265:6-265:16. "A court should not be expected to review a lengthy record for facts that
a party could have easily identified with greater particularity." Ammons v. Aramark Unif.
Servs., Inc., 368 F.3d 809, 817–18 (7th Cir. 2004). This Court will consider the contents
of the plaintiffs' Local Rule 56.1 Statement only to the extent that they are supported by
accurate citations to admissible evidence.
3

10

"dummkopf," a German word that translates to "dumb head." Def.'s L.R. 56.1 Stmt., Ex.
13 at 92:21-93:7. Cooper received a 29-day suspension for his conduct at the predisciplinary hearing.
Cooper testified that he believed certain DWM employees held "racist attitudes."
Pls.' L.R. 56.1 Stmt., Ex. 4 at 136:13-137:10, 147:1-12. Cooper also testified that a coworker, Joe Jones, said he was called an "effing n----- " by multiple DWM employees.
Id. at 270:22-272:22. Cooper further testified that he saw KKK and swastika symbols in
various areas at JWPP. Id. at 213:12-21. Cooper also stated that filtration engineer V
Frank Skiadopoulos consistently used the term "boy" and "you people" to refer to
African American employees, and testified he was told on multiple occasions that
Skiadopoulos used the n-word in conversation with other employees. Id. at 197:15-19,
200:1-11. Cooper testified that African American DWM employees heard the n-word
and other racist language "every day for a long time." Id. at 268:1-6.
4.

Hill

DWM hired Hill as a clerk in 1984. On January 1, 1999, Hill transferred to a staff
assistant position. She worked as the staff assistant for engineer Mark O'Malley at
JWPP from approximately 2005 until her retirement on June 30, 2015.
Hill contends that while at DWM she witnessed multiple instances of racist
conduct involving Murphy and Bresnahan. She testified that on one occasion she
overheard the n-word being used during a conversation between Murphy, Bresnahan
and an unidentified individual in Murphy's office. 4 Pls.' L.R. 56.1 Stmt., Ex. 11 at

Hill contends in the plaintiffs' response brief that this individual referred to African
American DWM employees as the "n-----s in the South district," but the cited portion of
4

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174:16-24; id. at 177:3-24. She further testified that she overheard Bresnahan tell other
employees stories about how he would "beat or harass" African American men while
serving on the Chicago police force. Id. at 181:14-182:18. Hill described the stories as
"very disturbing." Id.
Hill testified that she heard Stark use the n-word during a telephone conversation
in his office. Pls.' L.R. 56.1 Stmt., Ex. 11 at 38:4-39:21. The parties dispute whether
Hill's deposition testimony indicates that she heard Stark use the n-word once or
multiple times. During her deposition, the questioning attorney asked Hill "[w]hat was
the second time you heard [Stark] say the n-word?" Id. at 38:18-20. Hill responded
"[t]hat was the third time I heard him." Id. But then, when asked if she heard Stark say
the n-word "one time," Hill responded "[t]hat's correct." Id. at 38:21-23. Hill said that
over the course of her employment "several" employees informed her that they had
heard Stark use racially offensive language. Id. at 203:18-204:2. Hill also testified that
she believed Stark held racial animus due to the "nasty tone" in which he spoke to her.
Id. at 37:19-24.
Hill also stated that she observed the exchange of racist e-mails among DWM
leadership. She testified that Bresnahan once forwarded an e-mail from an African
American woman to other employees and that she then heard Bresnahan mocking the
woman's "very ethnic name." Id. at 179:12-180:7. Hill also testified that deputy
commissioner Luci Pope-Anderson showed her an e-mail that contained a racially
derogatory comment about Hightower. Id. at 185:10-187:16. Hill noted during her

her testimony does not contain this language. See Pls.' Resp. to Def.'s Mot. for Summ.
J. at 38; Pls.' L.R. 56.1 Stmt., Ex. 11 at 177:13-179:11.
12

deposition that although she could have stayed in her position longer in order to receive
a higher pension, she choose to retire because she "could not stay another day under
the circumstances" of the DWM working environment. Id. at 129:11-23.
5.

Laws

Laws began working for DWM in August 1988. Since 2006, he has worked for
DWM as a construction laborer. Laws is a member as of the Laborer's Local 1092
bargaining unit. In 2018, Laws applied for a caulker position. The City contends that
the position was limited to members of Local 130, a plumbers union, of which Laws was
not a member. Laws contends that white employers who were not Local 130 members
received promotions to the caulker position. Pls.' L.R. 56.1 Stmt. ¶ 265.
Laws testified that at DWM, African American employees were called the n-word
and other racially derogatory names such as "Black motherfucker" consistently during
their "day-to-day duties." Pls.' L.R. 56.1 Stmt., Ex. 12 at 70:11-71:1. Laws also recalled
multiple instances where co-workers called him the n-word or a "Black stupid ass," id. at
71:9-71:20, and also stated that there had been "a ton of instances" where he heard
white supervisors calling other African American employees the n-word or racially
offensive terms such as "spook" or "monkey." Id. at 71:21-72:9, 86:2-14. Laws also
stated that he heard Norman Clark, a driver foreman, mock an African American
employee's skin tone and instruct the employee to stand next to a door "to see if it was
painted black." Id. at 88:6-20. Laws testified that he heard rumors about Murphy and
Bresnahan using the n-word to refer to African American employees. Id. at 148:9149:24. Laws also stated that he observed a noose hanging from a white driver's truck.
Id. at 74:1-12.

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6.

Glenn

Glenn began his tenure at DWM in August 1986. He became a foreman of
station laborers in October 1998. As a foreman, Glenn and his team of station laborers
were responsible for cleaning sedimentation basins at SWPP. Station laborer Glenda
Shorter-Thomas, an African American woman, filed a complaint against Glenn claiming
that he had harassed her based on her gender. DHR investigated Shorter-Thomas's
complaint and concluded that Glenn had violated the City's EEO policy by "telling
Shorter-Thomas that her work suffered when she was wearing makeup, calling her 'GI
Jane,' and calling her 'McThirsty' over an intercom." Glenn's supervisor, Ealy, 5 and
DHR recommended a one-day suspension. A one-day suspension was issued in
September 2017.
During his deposition, Glenn stated that he retired early due to the "hostility" that
he experienced while working at DWM. Pls.' L.R. 56.1 Stmt., Ex. 8 at 204:15-24. Glenn
testified that he recalled multiple instances where he or his African American co-workers
were called names that he considered racially derogatory. When he was hired in 1986,
Glenn's co-workers gave him the nickname "homie" despite Glenn's objections to being
called that name. Id. at 66:2-19. Glenn testified that Pope called him the n-word at a
meeting. Id. at 38:12-24. 6 Glenn also testified that his co-worker Joe Jones told him
that Lynch called Jones the n-word. Id. at 143:9-18. Glenn further testified that he
observed racist graffiti on the wall of a corridor at a plant in 2014 or 2015. Id. at 158:1-

Ealy is also a plaintiff in this case.
Glenn asserts that during this meeting People also stated "I'm so sick and tired of you
n-----s," but the deposition exhibit Glenn cites does not include this language. See Pls.'
L.R. 56.1 Stmt. ¶ 172; Id., Ex. 8 at 38:8-41:11.

5
6

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13.
7.

Smith

DWM hired Smith as a laborer in August 1988. DWM appointed her to a
construction laborer position in May 2008. Smith applied for promotions to foreman
positions in 2012, 2013 and 2018. The City contends that the hiring process for the
2012 foreman position was stalled and that Smith did not reapply when the position
opened later in the year. Regarding the 2013 position, the City asserts that Smith,
along with six other applicants, failed part two of the prerequisite test for the position.
The City further states that Anthony Smithy, a white applicant, received the position
because he passed all three parts of the test and was rated the most qualified applicant.
In 2018, Smith applied for a position as a foreman of construction laborers. Smith,
along with eighteen other applicants, was interviewed by Dariuz Panaszec, a white
employee, and Wallace Davis III, an African American employee. Neither interviewer
recommended Smith for the position. Mark Sabala, a Hispanic employee, and Christine
Miller, an African American employee, were appointed to the position. Smith alleges
that a foreman position in her department opened in 2017, but that she was "denied the
opportunity to apply." Pls.' Resp. to Def.'s Mot. for Summ. J. at 68. Smith retired on
December 31, 2022.
Smith testified that she once observed a racially offensive symbol on DWM
property. Specifically, she stated that she saw a monkey "hanging on the wall" of the
driver's room in 2004. Pls.' L.R. 56.1 Stmt., Ex. 23 at 127:18-128:6. Smith also
testified that upon meeting Bresnahan in 2013, he did not introduce himself to her, and
another employee told her that he was a "racist." Id. at 160:17-162:1.

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8.

Anderson

DWM hired Anderson as a plumber in July 1994. In September 1998, he
became a foreman of water pipe construction. He worked as an assistant
superintendent from October 1, 2018 until his retirement on January 31, 2023.
Anderson received a five-day suspension in 2017. The suspension arose from a
physical altercation between Anderson and his white co-worker Mike Szorc. Anderson
filed a violence in the workplace complaint alleging that Szorc had instigated the
incident. Szorc also filed a violence in the workplace complaint alleging that Anderson
had pushed him to the floor. Szorc also alleged that Anderson had raised his fist and
threatened to kick and kill him during the altercation.
DWM investigated Anderson and Szorc's complaints and interviewed multiple
witnesses. Anderson alleges that during the altercation, Szorc called him the n-word.
Pls.' L.R. 56.1 Stmt. ¶ 131. The City disputes this allegation, contending that neither
Anderson's initial complaint nor any witness statements mention any use of any racial
epithets by Szorc. Def.'s Reply at 9. After the investigation was completed, DWM
concluded that Anderson was responsible for the altercation and issued him a
suspension. Anderson asserts that Szorc was not disciplined for the altercation.
Anderson filed a grievance appealing his suspension; Santiago denied the appeal.
Anderson states that he applied for promotions to multiple positions in 2014,
2017, and 2019. The City contends that Anderson failed part one of the prerequisite
test for the ADS position for which he applied in 2014. The City also contends that
Anderson started, but did not complete, two applications for superintendent positions in
2017 and an application for a general superintendent position in 2019.

16

Anderson testified that he believed he was subject to racist working conditions
while at DWM. He testified that African American workers were consistently sent to
work on the west side of Chicago, despite being "shot at," while white workers were not.
Pls.' L.R. 56.1 Stmt., Ex. 1 at 52:14-53:6. He further testified that he heard Bresnahan
and Williams make jokes that included the use of the n-word, and that Chris Williams,
his supervisor, called him and other African American employees the n-word. 7 Def.'s
L.R. 56.1 Stmt. Ex. 17 at 176:19-177:3, 177:7-178:2, 178:23-179:5.
9.

Henry

Henry became a plumber at DWM in November 1999. He applied for promotions
to superintendent positions in 2017, 2017, and 2018. The City contends that Henry did
not receive these positions because DHR determined he did not have "sufficient
supervisory experience." Def.'s Mot. for Summ. J. at 48.
Henry testified that a co-worker informed him that Jack Lee, his supervisor, once
said that "as soon as John Sanders," an African American superintendent, "retires,"
"that n----- David Henry ain't getting shit." Pls.' Resp. to Def.'s L.R. 56.1 Stmt., Ex. 9 at
66:17-67:3. Henry also testified that while working below Lee, he did not receive
overtime opportunities but that after Lee left he was able to receive overtime under a
new supervisor. Id. Henry also testified that he saw racist imagery while working at
DWM, including a racist e-mail that was circulated among DWM staff. The e-mail

Anderson asserts that he was subject to various additional forms of racial harassment
during his tenure at DWM, such as observing racist graffiti on bathroom walls, seeing a
noose in a DWM truck, and hearing other African American employees referred to as
the n-word, "you people" and "monkeys." Pls.' L.R. 56.1 Stmt. ¶¶ 132, 136-139. But in
support of those assertions, he cites to pages in his deposition testimony that were not
included in the exhibit the plaintiffs cited.
7

17

included a picture of a group of DWM employees with a photo of a gorilla's face
covering the face of the only African American employee in the photo. Id. at 111:17112:4. Henry testified that he observed a noose hanging from the truck of a driver. Id.
at 114:14-115:5. He further testified that he heard African American employees referred
to multiple times as "spook" and "boy," both of which he considered racially offensive.
Id. at 159:2-14.
The City has moved for summary judgment on all of the plaintiffs' claims.
Discussion
Summary judgment is appropriate if the moving party demonstrates that "there is
no genuine dispute as to any material fact and that the movant is entitled to judgment as
a matter of law." Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when
"the evidence is such that a reasonable jury could return a verdict for the non-moving
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating a
summary judgment motion, the Court construes all facts and draws all reasonable
inferences in the nonmoving party's favor. Frakes v. Peoria Sch. Dist. No. 150, 872
F.3d 545, 550 (7th Cir. 2017). A court's role in deciding a summary judgment motion is
"not to sift through the evidence, pondering the nuances and inconsistencies, and
decide whom to believe." Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir.
1994). Rather, a court's "only" task is to decide "whether there is any material dispute
of fact that requires a trial." Id. "The parties, in turn, bear a concomitant burden to
identify the evidence that will facilitate this assessment." Id.
To avoid summary judgment, the plaintiffs must "identify[] specific, admissible
evidence showing that there is a genuine dispute of material fact for trial." Johnson v.

18

Advoc. Health & Hosps. Corp., 892 F.3d 887, 894 (7th Cir. 2018). "[C]onclusory
statements, not grounded in specific facts, are not sufficient to avoid summary
judgment." Lucas v. Chicago Transit Auth., 367 F.3d 714, 726 (7th Cir. 2004). "There
is no requirement that the moving party support its motion with any evidence
[affirmatively] negating the opponent's claim." Johnson, 892 F.3d at 896.
A.

Evidentiary disputes
Before addressing the merits of the defendant's motion for summary judgment,

the Court must address the parties' various evidentiary disputes. The plaintiffs argue in
their response brief that the DWM records submitted by the defendant, including
discipline and payroll records, constitute "inadmissible hearsay" and do not qualify as
business records under Federal Rule of Evidence 803(6). See Pls.' Resp. to Def.'s Mot.
for Summ. J. at 9-14. The plaintiffs primarily take issue with declarations submitted by
DWM Supervisor of Personnel Administration Marisol Santiago and DHR Acting
Commissioner Kathleen Doyle Deane. Specifically, the plaintiffs contend that these
declarations are improper because Santiago and Doyle lack personal knowledge of the
events described in the records they reference.
The City argues that the disputed evidence is admissible under the "business
records" exception to the hearsay rule found in Rule 803(6). "A party establishes a
foundation for admission of business records when it demonstrates through the
testimony of a qualified witness that the records were kept in the course of a regularly
conducted business activity, and that it was the regular practice of that business to
make such records." United States v. Reese, 666 F.3d 1007, 1017 (7th Cir. 2012)
(citation omitted). A qualified witness must have "personal knowledge of the procedure

19

used to create and maintain the document"; personal knowledge of the events
described in the document is not required. Id.; United States v. Given, 164 F.3d 389,
394 (7th Cir. 1999) ("A qualified witness does not need to be the person who prepared
the records or have personal knowledge of the information contained . . . ."). Santiago
and Doyle sufficiently explain that the referenced records were developed through
DWM's ordinary course of business as well as their knowledge of the process involved
in creating the records. Def.'s L.R. 56.1 Stmt., Ex. 4 ¶ 9; id., Ex. 32 ¶ 32. Their
explanation is sufficient to meet the requirements of Rule 803(6).
The plaintiffs also argue that the City's records lack "trustworthiness" because
they "come out of a department" with a culture that they allege was "racially
discriminatory." Pls.' Resp. to Def.'s Mot. for Summ. J. at 12. But the Court can, and
does, "presume the reliability of business records based on the lack of deceitful
incentive and the habitual accuracy implicit within regularity." Igasaki v. Ill. Dep't of Fin.
& Pro. Regul., 988 F.3d 948, 956 (7th Cir. 2021). The alleged presence of racist
employees within DWM is not sufficient to overcome the presumption of reliability for its
records of regularly conducted activity; rather it is a matter of the weight to be given to
those records by the finder of fact. In the case that the plaintiffs cite in support of this
argument, Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004), the Seventh Circuit
excluded the evidence because it was not developed in the course of the party's regular
business activity, not because it lacked trustworthiness. See id. at 588 (holding
documents created for purpose of disputing liability in lawsuit did not qualify as business
records). The Court therefore overrules the plaintiffs' request to exclude DWM's
employment and personnel records.

20

The plaintiffs also object to the admissibility of the City's March 4, 2022 answers
to interrogatories because they were "not signed and verified by a person with personal
knowledge of any of the matters asserted therein." Pls.' Resp. to Def.'s L.R. 56.1 Stmt.
¶ 143 (citing Johnson v. Holder, 700 F.3d 979, 982 (7th Cir. 2012)). The City concedes
that the copy of the March 4, 2022 answers to interrogatories attached to its Local Rule
56.1 Statement did not include a verification page. But it contends that the verification
pages were provided to the plaintiffs when it initially served the answers, and it also
contends that it later produced a copy of the verified supplemental interrogatory
answers. Def.'s Reply at 3-4. This does not appear to be disputed. The Court
therefore overrules the plaintiffs' request to exclude the City's statements of fact that cite
to the March 4, 2022 answers to interrogatories.
For its part, the City objects to the plaintiffs' references to the contents of various
OIG reports, including e-mails sent and statements made by DWM employees, as
"inadmissible hearsay." See Def.'s Reply at 41. But because these reports were
produced in the context of an authorized OIG investigation, they fall within the hearsay
exception for "factual findings from a legally authorized investigation." FED. R. EVID.
803(8)(A)(iii). When the criteria for admissibility under that rule are met, as they are in
this case, the record is admissible unless the opposing party "show[s] that the source of
information or other circumstances indicate a lack of trustworthiness." Id. Because the
City has not raised an issue regarding trustworthiness, the Court overrules its objection
to these reports.
The City also objects to much of the plaintiffs' evidence, including alleged
statements made by the plaintiffs' co-workers, on hearsay grounds. See Def.'s Reply at

21

25-28. But these statements are admissible for the non-hearsay purposes of
establishing the plaintiffs' understanding of the severe or pervasive nature of workplace
conduct and/or evaluating the impact the statements had on the plaintiffs' subjective
evaluation of their work environments. See Johnson, 892 F.3d at 903. Additionally, the
Court will consider statements made by the plaintiffs' co-workers in the context of hiring
and disciplinary decisions for these purposes. See id. at 901; Khungar v. Access Cmty.
Health Network, 985 F.3d 565, 575 (7th Cir. 2021).
The City also contends that the plaintiffs did not properly disclose Bernard Siskin
and Charles Gallagher as expert witnesses as required by Federal Rule of Civil
Procedure 26(a)(2). Siskin developed statistical models based on the City's overtime,
disciplinary and hiring data in support of the plaintiffs' contention that the City's
employment practices produced "patterns of unfavorable treatment of African
Americans." Pls.' Resp. to Def.'s Mot. For Summ. J. at 58. Gallagher, a sociologist,
opined that the City's "predominantly white leadership created a hostile work
environment for African Americans." Pls. L.R. 56.1 Stmt. ¶ 270. Following the denial of
the plaintiffs' motion for class certification, the Court set a September 23, 2023 deadline
for Rule 26(a)(2) disclosures. Dkt. No 277. The plaintiffs have not provided a
justification for their failure to submit Siskin and Gallagher's reports as expert
disclosures for summary judgment purposes before this Court's deadline. But because
excluding this evidence will not impact the Court's decision, the Court will consider the
plaintiffs' expert reports to the extent they are relevant to their individual discrimination
claims.

22

B.

State law race discrimination claims
The Court turns next to the plaintiffs' state law claims. The City argues that ICRA

does not apply to the plaintiffs' employment discrimination claims. ICRA provides that
no governmental entity shall "exclude a person from participation in, deny a person the
benefits of, or subject a person to discrimination under any program or activity on the
grounds of that person’s race, color, national origin, or gender." 740 ILCS 23/5(a). The
defendant contends that ICRA operates as a state law parallel to Title VI of the Civil
Rights Act of 1964. See Def.'s Mot. for Summ. J. at 18 (citing Weiler v. Vill. of Oak
Lawn, 86 F. Supp. 3d 874, 889 (N.D. Ill. Mar. 31, 2014) (Kennelly, J.)). A plaintiff
cannot maintain an employment discrimination claim against a government entity
receiving federal funding under Title VI unless "(1) providing employment is a primary
objective of the federal aid, or (2) discrimination in employment necessarily causes
discrimination against the primary beneficiaries of the federal aid." Ahern v. Bd. of
Educ. of City of Chicago, 133 F.3d 975, 978 (7th Cir. 1998) (quoting Trageser v. Libbie
Rehab. Ctr., Inc., 590 F.2d 87, 89 (4th Cir. 1978)).
In their response brief, the plaintiffs assert that the City "claims the Illinois Civil
Rights Act does not apply to any 'program or activity' involving employment." Pls.'
Resp. to Def.'s L.R. 56.1 Stmt. at 81. That is not quite right. The City does not argue
that ICRA does not apply to any employment discrimination claims. Instead, it contends
that ICRA only applies to employment discrimination claims brought against a
government entity that meets the Ahern test for Title VI claims. The City further argues
that the plaintiffs cannot satisfy the Ahern test because they have not offered evidence
that would permit a finding either that employment is a "primary objective" of the DWM

23

or that DWM's allegedly discriminatory practices impact the primary beneficiaries of the
federal funding it receives. See Agbefe v. Bd. of Educ. of Chicago, 538 F. Supp. 3d
833, 838 (N.D. Ill. 2021) (dismissing plaintiff's Title VI employment discrimination claims
for failure to satisfy the Ahern test).
The plaintiffs do not dispute that their ICRA claims should be evaluated under the
Title VI standard the City cites, nor do they attempt to establish that they meet either
prong of the Ahern test. Thus they have effectively forfeited the ICRA claims. That
aside, the evidence in the record—including the plaintiffs' own allegations—reflects that
the primary objective of the federal funding DWM receives is the provision of water and
sewage services, not employment. See Pls.' Third Am. Compl. ¶ 46 ("The primary
function of the Water Department is the purification and transmission of potable water to
the homes and business [sic] within Chicago and 126 suburban communities."). For
these reasons, the City is entitled to summary judgment on the plaintiffs' ICRA claims.
C.

Federal race discrimination claims
The plaintiffs assert race discrimination and hostile work environment claims

under the Civil Rights Act of 1866, which is codified at 42 U.S.C. § 1981, via 42 U.S.C §
1983. Section 1981 guarantees "the right to be free of racial discrimination in the
making and enforcing of contracts," including employment contracts. Morgan v. SVT,
LLC, 724 F.3d 990, 995 (7th Cir. 2013). Section 1983 "provides the exclusive federal
damages remedy for the violation of the rights guaranteed by § 1981 when the claim is
pressed against a state actor." Campbell v. Forest Pres. Dist. of Cook Cnty., 752 F.3d
665, 666 (7th Cir. 2014) (quoting Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 735
(1989)). Section 1981/section 1983 claims of this sort are analyzed under the same

24

standard as Title VII employment discrimination claims. Alexander v. Wis. Dep't of
Health & Fam. Servs., 263 F.3d 673, 682 (7th Cir. 2001); Williams v. Seniff, 342 F.3d
774, 788 (7th Cir. 2003).
"[T]he singular question that matters in a discrimination case" is "whether the
evidence would permit a reasonable factfinder to conclude that the plaintiff's race . . .
caused the discharge or other adverse employment action." Johnson, 892 F.3d at 894
(internal quotation marks omitted). One way that a plaintiff can organize the evidence
supporting a discrimination claim is via the burden-shifting framework articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To withstand summary
judgment under the McDonnell Douglas test, the plaintiffs must establish a prima facie
case of discrimination by presenting evidence from which a reasonable factfinder could
determine that they "(1) are members of a protected class; (2) performed reasonably on
the job in accord with their employer['s] legitimate expectations; (3) were subjected to an
adverse employment action despite their reasonable performance; and (4) similarly
situated employees outside of the protected class were treated more favorably by the
employer." Johnson, 892 F.3d at 895. "[I]f a plaintiff successfully makes out a prima
facie case, the employer must then present a legitimate, non-discriminatory reason for
the allegedly unlawful action." Alexander, 263 F.3d at 682. If the employer satisfies
that burden, the plaintiff must demonstrate—actually, in the summary judgment context,
present evidence that would support a finding—that "the employer's stated reason is
merely a pretext for discrimination." Id.
If a plaintiff seeks to establish a race discrimination claim without utilizing the
McDonnell Douglas framework, the plaintiff must provide either direct or circumstantial

25

evidence that would permit a reasonable factfinder to draw an inference of intentional
discrimination. Joll v. Valparaiso Cmty. Schs., 953 F.3d 923, 929 (7th Cir. 2020) (citing
Ortiz v. Werner Enters. Inc., 834 F.3d 760, 764-65 (7th Cir. 2016)). Circumstantial
evidence includes "ambiguous or suggestive comments or conduct; better treatment of
people similarly situated but for the protected characteristic; and dishonest employer
justifications for disparate treatment." Joll, 963 F.3d at 929. The plaintiffs reference
both the McDonnell Douglas test and the Ortiz circumstantial evidence standard in their
response brief. This Court will evaluate the claims of each plaintiff under the McDonnell
Douglas standard and will also consider any circumstantial evidence of discrimination
that the plaintiffs present.
The plaintiffs contend that the City employed racially discriminatory promotion,
overtime, shift assignment and acting up policies. The plaintiffs also assert that they
have been "humiliated, harassed, denied opportunities for advancement and additional
pay, and threatened daily" due to the hostile work environment that they contend the
City created and encouraged. Pls.' Third Am. Compl. ¶ 76.
1.

Discipline

Ealy, Cooper, Glenn, and Anderson contend that they were unfairly disciplined
because of their race. All four plaintiffs assert that they were disciplined more harshly
than white employees. In determining whether a proposed comparator was similarly
situated, the Seventh Circuit has stated that as a general rule the plaintiff must adduce
evidence that the alleged comparators "(1) dealt with the same supervisor, (2) were
subject to the same standards, and (3) engaged in similar conduct without such
differentiating or mitigating circumstances as would distinguish their conduct or the

26

employer's treatment of them." Coleman v. Donahoe, 667 F.3d 835, 847 (7th Cir. 2012)
(internal quotation marks omitted). But Coleman also makes clear that "[t]his is not a
magic formula, . . . and the similarly-situated inquiry should not devolve into a
mechanical, one-to-one mapping between employees." Id. (internal quotation marks
omitted); Muhammad v. Univ. of Chi., No. 16 C 9998, 2019 WL 13075598, at *3 (N.D.
Ill. Mar. 31, 2019) (noting that comparators with different supervisors can be similarly
situated to the plaintiff).
The Court starts with Ealy, who challenges her five-day suspension in 2018. The
City says that Ealy was suspended by Managing Deputy Commissioner Marisol
Santiago for insubordination, relating to Ealy's alleged refusal to provide a female
custodian who was a nursing mother with a key to a lactation room, and for violating the
City's policy regarding "acting up" with respect to several custodians. The City contends
that Ealy actually committed the misconduct, but that is not dispositive; if an employer
suspends an African-American employee for a particular infraction but gives a white
employee a pass for a similar infraction, that may be unlawful even if it is undisputed
that the African-American employee actually committed the infraction. In this regard,
Ealy says that her coworkers Edward Salinas and Joe Lynch, neither of whom is African
American, were not disciplined after "operating the Jardine [Plant] without a nursing
room for 2 years after the City implemented a requirement to have one." Pls.' L.R. 56.1
Stmt. ¶ 238. The City disputes Ealy's statement on evidentiary grounds, Def.'s Resp. to
Pls.' L.R. 56.1 Stmt. ¶ 238, but its contention on that front is not discussed in its brief
and is persuasive, at least for purposes of the present motion. The City contends in its
brief that what Salinas and Lynch allegedly did is different, largely because Ealy's

27

claimed infraction involved a specific employee who needed access to a lactation room.
See Def.'s Reply at 6-7. But what is required is "conduct of comparable seriousness,"
Coleman, 667 F.3d at 851 (emphasis added), not necessarily identical conduct. A
reasonable jury could find the infractions sufficiently similar to allow a reasonable
inference of discriminatory mistreatment.
As far as the "acting up" issue is concerned, Ealy says she did not believe the
employees in question should be allowed to act up due to conflicts among them and
because they did not "exhibit the behavior to be supervisors," but that deputy
commissioner Pope rejected her explanation. Pls.' Resp. to Def.'s Mot. for Summ. J. at
60. On this point, Ealy does not cite any allegedly comparable DWM employees who
she says were treated less harshly. Instead she relies on Pope's involvement in the
process. Ealy argues that the absence of any discussion in Pope's declaration of his
refusal to accept her justification for denying acting up opportunities "is a fact a jury
could consider to infer his testimony would have been helpful to Plaintiffs." Pls.' Resp.
to Def.'s Mot. for Summ. J. at 60. But the case Ealy cites in support of her argument,
Miksis v. Howard, 106 F.3d 754, 763 (7th Cir. 1997), is inapposite. In that case the
Seventh Circuit discussed the standards for missing-evidence jury instructions, not the
moving party's evidentiary burden at the summary judgment stage. See Miksis, 106
F.3d at 763. Here no adverse inference appropriately may be drawn from the City's
failure to submit a sworn statement by Pope explaining his conduct. There is at least
some evidence in the record, however, suggesting a racial animus on Pope's part, and
Ealy is entitled to argue that this affected his input into the disciplinary decision and thus
the decision itself. This, and the lack of clarity in how much of a role the "acting up"

28

issue (as opposed to the lactation room issue) played in Ealy's discipline, precludes
entry of summary judgment on her discriminatory discipline claim.
Next is Cooper, who challenges a twenty-eight-day suspension that resulted from
an incident during which he called his supervisor, Pope, a "dumbass" and a "dummkopf"
(the German term for "dumb head"). At issue here is not—or at least not just—whether
Cooper committed an infraction, 8 but rather the imposition of punishment and the
severity of the punishment. By way of a comparison, Cooper cites evidence showing
DWM employees, and supervisory personnel, referring to subordinates or co-workers
with racial epithets, including the n-word, without being subjected to discipline. These
incidents are not identical—for example, the Court has not located any evidence of an
incident involving a subordinate referring to a supervisor with a racial epithet—and for
that reason the City argues that the comparable incidents are too dissimilar to support
an inference of discrimination. The Court disagrees. Though one would not condone
telling one's supervisor he is a "dumbass," many—indeed, likely most—reasonable
people would find calling a co-worker or a subordinate "n-----" considerably more
inappropriate and deserving of sanction. The Court also notes that Cooper's infraction
was punished, in part, under the headings of "discourteous treatment" and "conduct
unbecoming," see Pls.' L.R. 56.1 Stmt. ¶ 62, which is equally true of the allegedly
unpunished incidents involving racial epithets. In sum, the incidents are similar enough
that it is appropriately left to a jury to decide whether the differential treatment gives rise

In the plaintiffs' response brief Cooper contends that "none of the hearsay records
Defendant offers . . . suggest Cooper called anyone a 'dumbass.'" Pls.' Resp. to Def.'s
Mot. for Summ. J. at 61. But Cooper admitted during his deposition that he called Pope
both a "dumb ass" and a "dummkopf" during his disciplinary hearing. Def.'s L.R. 56.1
Stmt., Ex. 13 at 92:21-93:5; id. at 93:6-7.

8

29

to an inference of discrimination.
The Court reaches the same conclusion regarding the discriminatory discipline
claim asserted by Glenn, who challenges a one-day suspension in 2017 that resulted
from a co-worker making a complaint against him for sexual harassment. This, too, is
sufficiently similar to unpunished incidents of racial harassment—including the use of
racial epithets—to permit a reasonable inference of discriminatory imposition of
discipline.
The last plaintiff who asserts a claim of racially discriminatory discipline is
Anderson. As discussed earlier, Anderson was given a five-day suspension in 2017
after a physical and verbal altercation with a white co-worker named Szorc. Anderson
contends that Szorc instigated the altercation and called him the n-word; Anderson
responded by pushing Szorc; and a physical fight ensued. See Pl.'s L.R. 56.1 Stmt. ¶
131. After the incident, Anderson was subjected to drug testing and was ultimately
suspended; Szorc was not disciplined. Anderson suggests that Szorc is an appropriate
comparator; he does not cite any other incidents or situations that he contends are
comparable.
The problem with Anderson's contention is that, during DWM's investigation of
the incident, multiple witnesses reported that Anderson started the altercation by
pushing Szorc first. See Def.'s L.R. 56.1 Stmt., Ex. 84 at 086089, 086094, 086099.
Anderson has a different view of the matter, but that is not enough to give rise to a
genuine factual dispute requiring a trial: the question is whether the decisionmaker, or,
at least, those who provided the input that may have influenced the decisionmaker, had
a discriminatory animus. See Alexander, 263 F.3d at 684. Anderson offers no

30

evidence in this regard. Specifically, he points to no evidence that the witnesses who
reported that he started the altercation were racially biased or that the decisionmaker(s)
who relied on the witnesses' accounts were racially biased. Nor does he point to
evidence that would permit a finding that a five-day suspension was out of line for an
incident involving workplace violence. Without such evidence, Anderson's claim
regarding discipline cannot survive summary judgment.
In summary, the City is entitled to summary judgment on Anderson's
discriminatory discipline claim, but the claims of plaintiffs Ealy, Cooper, and Glenn will
proceed to trial. The plaintiffs agree that none of the other plaintiffs can maintain a
viable claim of discriminatory discipline.
2.

Promotions

Ealy, Cooper, Laws, Smith, Anderson, and Henry allege that the defendant
denied them promotions based on their race. To establish a prima facie case of
discriminatory failure to promote, the plaintiffs must produce evidence that (1) they are
members of a protected class; (2) they were qualified for the position sought; (3) they
were rejected for the position; and (4) the position went to an individual outside of the
protected class who was not better qualified for the position. Riley v. Elkhart Cmty.
Sch., 829 F.3d 886, 892 (7th Cir. 2016).
Each failure to promote claim involves an alleged denial of promotion based on
race. But none of the plaintiffs have adduced evidence that would allow a reasonable
factfinder to conclude that the candidates promoted over them were not better qualified
for the positions they sought. In the plaintiffs' response brief, Cooper and Laws do not
identify the individuals who were promoted over them. See Pls.' Resp. to Def.'s Mot. for

31

Summ. J. at 65-67. A plaintiff's failure to identify an individual outside of the protected
class who received the promotion dooms a claim of discriminatory failure to promote.
Jordan v. City of Gary, 396 F.3d 825, 833 (7th Cir. 2005).
As for Henry, Ealy, Smith, and Anderson, the information they offer about the
candidates who were selected provide no evidence from which a reasonable jury could
conclude that they (the plaintiffs) were denied promotions due to race discrimination.
Henry asserts that he had "equivalent experience training others," but he does
not identify which individual(s) he believes his experience was equivalent to, and he
does not provide information about the supervisory experience of any other candidates.
Pls.' Resp. to Def.'s Mot. for Summ. J. at 69. "[A]n employee's own subjective belief
that [he] is as qualified or more qualified than another applicant"—which is all Henry is
left with—is insufficient to avoid summary judgment. Stephens v. Erickson, 569 F.3d
779, 788 (7th Cir. 2009). Anderson contends that the white candidate selected for the
2019 general superintendent position for which he applied "had only been with the City
for a few years." Pls.' Resp. to Def.'s Mot. for Summ. J. at 69. The City contends,
however, that Anderson did not submit an application for this position. Anderson says
he testified about his application for this position during his deposition, but the pages he
cites from his testimony are not included in the plaintiffs' exhibit containing excerpts
from his deposition. See Pls.' L.R. 56.1 Stmt. ¶ 255; id., Ex. 1. Furthermore, the only
information Anderson provides about the candidate selected for that position is that he
was white and "the son of another superintendent." Pls.' Resp. to Def.'s Mot. for Summ.
J. at 69. Similarly, Smith notes that the 2013 pipe salvage yard foreman position she
applied for ultimately went to "a white construction laborer" who appeared to have a

32

close relationship with Bresnahan. Id. at 68. But employment decisions based on
personal relationships do not provide evidence of discrimination in the hiring process.
Briggs v. SMG Food & Beverage, L.L.C., No. 20 C 1733, 2022 WL 2915634, at *3 (N.D.
Ill. July 25, 2022).
Rather than meaningfully argue that the promoted candidates were lesser
qualified, the plaintiffs instead dispute the admissibility of the hiring records the
defendant provided and contend that the defendant's failure to provide detailed
explanations for its promotional decisions raises an inference of discrimination. First, as
discussed above, the interview notes and other documents the defendant provided
related to the plaintiffs' applications for promotions qualify as admissible business
records. Second, the plaintiffs' arguments regarding the adequacy of the defendant's
justifications "put[] the pretext cart before the prima facie horse." Brummett v. Lee
Enters., Inc., 284 F.3d 742, 744 (7th Cir. 2002). Under the McDonnell Douglas
standard, the burden is on the plaintiff, not the defendant, to present evidence of a
proper comparator. Johnson v. Beach Park Sch. Dist., 103 F. Supp. 3d 931, 938 (N.D.
Ill. 2015) (granting summary judgment in favor of employer due to plaintiff’s failure to
present evidence regarding the qualifications of candidate hired over her). The plaintiffs
must first satisfy every element of a prima facie case of discrimination before the
defendant is expected to offer a non-discriminatory reason for promoting the selected
candidate. Brown v. Shinseki, 892 F. Supp. 2d 1019, 1031 (N.D. Ill. 2012). In other
words, it is initially the plaintiff’s burden to establish that the selected candidate was less
qualified, not the defendant’s burden to prove that the selected candidate was more
qualified.

33

Ealy, Smith, and Anderson each challenge the City's contention that they failed a
written test during the hiring process, asserting that the City has not adequately
explained the test requirements. See, e.g., Pls.' Resp. to Def.'s Mot. for Summ. J. at 64.
But the plaintiffs have not suggested that any candidates that also failed the written test
received a promotion, or produced any evidence that the written test requirement was
applied differently to African American applicants. And the plaintiffs' disagreement with
their employer's evaluation of their qualifications for the position alone is insufficient to
create a genuine issue of material fact. Cardoso v. Robert Bosch Corp., 427 F.3d 429,
436 (7th Cir. 2005). Ealy also notes that the City did not provide notes from the
decisionmakers for the April 2014 COE position. Ealy's only evidence of discrimination
related to that position, however, is that the defendant failed to provide an explanation
for how it choose between two other candidates with identical seniority dates. Pls.'
Resp. to Def.'s Mot. for Summ. J. at 64. But the City says both candidates were white,
see Def.'s Reply at 11, and it is unclear how its failure to explain how it chose between
two white candidates could support Ealy's race discrimination claim. Furthermore, Ealy
has not presented any evidence to suggest either of these candidates were less
qualified for the position than she was at the time.
The plaintiffs have not produced evidence from which a reasonable jury could
conclude that they have established a prima facie case of discrimination under
McDonnell Douglas. Furthermore, the plaintiffs have not adduced circumstantial
evidence of discrimination in the DWM promotion process. They assert that the City
"manipulated the promotion process to disadvantage African Americans." Pls.' Resp. to
Def.'s Mot. for Summ. J. at 63. But at the summary judgment stage, the burden is on

34

the nonmoving party to respond to a properly-supported motion with "specific facts
showing that there is a genuine issue for trial." Spierer v. Rossman, 798 F.3d 502, 507
(7th Cir. 2015). The plaintiffs have not met this burden. Ealy contends that "seniority
was manipulated to advantage whites." Id. at 64. But in the portion of her testimony
that she cites to support of that contention, Ealy does not discuss the DWM seniority
system or any alleged "manipulation." Pls.' L.R. 56.1 Stmt. ¶ 265; id., Ex. 6 at 40:2043:17. Ealy testified that she believed that white employees were at an advantage
regarding promotions "because their fathers, their cousin, somebody is already in the
system." Id., Ex. 6 at 43:1-17. But she presented no evidence to support this belief,
and "[s]peculation is no substitute for evidence at the summary judgment stage." Bass
v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 841 (7th Cir. 2014).
Smith asserts that she was "denied the opportunity to apply for a foreman
position." Pls.' L.R. 56.1 Stmt. ¶ 262. Smith stated in her deposition that she did not
apply for that position, but provides no information about how she was "denied" this
opportunity or who was involved with this denial. Pls.' L.R. 56.1 Stmt., Ex. 23 at 49:2124. And the evidence in the record that Smith points to indicates that twenty-six
candidates were considered for that promotion, not that the position was "given" to a
candidate. See Pls.' L.R. 56.1 Stmt., Ex. 92. Laws asserts that he was told that he was
not eligible for a promotion to a caulker position because he was not a member of the
Local 130 bargaining unit but that white members of his union were promoted to caulker
positions. Pls.' Resp. to Def.'s Mot. for Summ. J. at 66. But the portion of Laws'
testimony that he cites in support of this assertion contains no discussion of white
employees being promoted to the caulker position. See Pls.' L.R. 56.1 Stmt. ¶ 265; Pls.'

35

L.R. 56.1 Stmt. Ex. 12 at 32:7-36:16.
The City is entitled to summary judgment on Ealy, Cooper, Laws, Smith,
Anderson, and Henry's claims for discriminatory denial of promotions.
3.

Shift assignment

Ealy contends that she "was denied the day shift and desired work locations,
while Caucasian employees with less seniority were given preference for shifts and
locations." Third Am. Compl. ¶ 160. But she does not offer the names, positions,
supervisors, or any other identifying information about the employees she contends
were treated more favorably. Instead Ealy alleges that the shift assignment records the
City produced were created in March 2018 and therefore are not contemporaneous with
the relevant events. See Pls.' Resp. to Def.'s Mot. for Summ. J. at 78. Assuming that is
so, a plaintiff does not show the existence of a genuine factual dispute or otherwise
defeat summary judgment simply by pointing to deficiencies in the defendant's
evidence. "[T]he ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff."
Brown, 892 F. Supp. 2d at 1031 (quoting Vitug v. Multistate Tax Comm'n, 88 F.3d 506,
515 (7th Cir. 1996)). Furthermore, "the prima facie case must be established and not
merely incanted." Grayson v. O'Neill, 308 F.3d 808, 818 (7th Cir. 2002). Ealy's
assertion that employees outside of her protected class were "given preference," with
no evidentiary support at all, is insufficient to withstand summary judgment. Based on
the record before the Court, no reasonable jury could find that Ealy was subject to
discrimination in the distribution of shift assignments.

36

4.

Overtime

In support of their claims of discriminatory denial of overtime, Hill, Laws, Glenn,
Anderson, and Henry assert that the City "failed to provide any records showing
overtime was equitably assigned for any position for any period of time." Pls.' Resp. to
Def.'s Mot. to Summ. J. at 70. But to avoid liability on the plaintiffs' overtime claims, the
City does not bear the burden of demonstrating that overtime was equitably assigned.
Instead, the burden is on the plaintiffs to produce evidence that would permit a
reasonable jury to find they were denied overtime opportunities based on their race.
Hill, Laws, Glenn, Anderson, and Henry each testified that they observed white
employees routinely being assigned overtime while African Americans were consistently
denied overtime opportunities. See Pls.' Resp. to Def.'s Mot. for Summ. J. at 70-75.
But they offer nothing specific; they "did not submit affidavits from white [comparators],
records of assignments, pay, or any other scintilla of evidence of how similarly situated
white employees were treated." Johnson, 892 F.3d at 897. Hill references one white
employee, Sharon Regula, who she asserts received "favorable treatment." Pls.' L.R.
56.1 Stmt. ¶ 183. But the portion of the deposition exhibit Hill cites in support of that
assertion contains no mention of Regula. Id., Ex. 11 at 222:17-224:15.
That aside, the City describes the overtime assignment process as "situation
specific," and the plaintiffs have not pointed to any specific situations where they were
denied overtime and a white employee got it. The plaintiffs dispute the admissibility of
the documents the City cites to support its description of the overtime assignment
process, but aside from this they do not challenge the City's description of this process.
None of the plaintiffs have adduced evidence of a proper comparator for the distribution

37

of overtime opportunities. On the record before the Court, no reasonable factfinder
could conclude that they have established a prima facie case of discrimination for their
overtime claims.
The only plaintiff who provides circumstantial evidence to support an overtime
claim, aside from the referenced non-specific allegations, is Henry. Henry says a coworker told him that his supervisor, Lee, said that "as soon as John Sanders [Plaintiff's]
then-supervisor, who was African American] retires, . . . that [n-----] David Henry ain't
getting shit." Pls.' Resp. to Def.'s Mot. for Summ. J. at 75. Henry argues that Lee's
comment would allow a reasonable jury to find that Henry's inability to gain overtime
opportunities from Lee was race-based. The Seventh Circuit has held that evidence of
an employer's racially charged comment, proximate to an adverse employment action,
is sufficient to permit a plaintiff to withstand summary judgment. Darchak v. City of
Chicago Bd. of Educ., 580 F.3d 622, 631-32 (7th Cir. 2009). But Henry offers no
information about the temporal proximity between Lee's alleged comment and any of
the overtime opportunities he says he was denied.
The plaintiffs also argue that the Court should infer that the City's overtime
process was tainted by discrimination because it "fails to offer virtually any testimony
from decisionmakers involved in assigning overtime." Pls.' Resp. to Def.'s Mot. for
Summ. J. at 75. But before any of the plaintiffs "can benefit from a favorable view of
evidence, [they] must first actually place evidence before the courts." Montgomery, 626
F.3d at 389. No reasonable jury could find the overtime assignment process
discriminatory based solely on the City's alleged deficiencies in producing evidence
regarding the assignment of overtime shifts. Based on the evidence in the record, no

38

reasonable jury could find that the plaintiffs were subject to discrimination in the
distribution of shift assignments.
5.

Acting up

Cooper, Smith, Hill, Anderson, and Ealy's acting up claims also lack evidentiary
support. Cooper concedes that he was not eligible for the acting up opportunity he
sought due to the City's rule that employees are only eligible to act up in the position
one level above their current position, but he argues that an "exception" could have
been made for him. See Pls.' Resp. to Def.'s Mot. for Summ. J. at 76. The only
employee he identifies as having potentially received an exception, however, is Ealy,
who is also African American. To be an appropriate comparator for establishing a prima
facie case of discrimination, the similarly situated employee must present evidence of
"similarly situated individuals who were not members of a protected class." Hirsch v.
Cognizant Tech. Sols. U.S. Corp., No. 21 C 161, 2023 WL 3320285, at *6 (N.D. Ill. May
9, 2023) (emphasis added). Evidence that another African American employee was
treated more favorably provides no support for Cooper's claim that he was denied acting
up opportunities based on his race.
Cooper also testified that in April 2017, while his supervisor was on vacation, he
was not offered the opportunity to "act up" into his supervisor's position despite
allegedly being the only one qualified to do so. Pls.' L.R. 56.1 Stmt., Ex. 11 at 81:2282:22. Cooper believes that his inability to act up was due to his race because, he
says, the acting up policy implemented by Stark systematically deprived African
Americans of acting up opportunities. Id. at 83:2-23. But Cooper provides no evidence
of this "systemic" deprivation of acting up opportunities other than his own perception

39

that he was denied overtime acting up opportunities that he believes he was entitled to.
"Bare allegations not supported by specific facts are insufficient in opposing a motion for
summary judgment." Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th
Cir. 1989).
Smith asserts that DWM employees "bent or changed rules to the disadvantage
of African Americans," but her evidence in support of this assertion is that management
ceased to assign acting up opportunities based on seniority after she became the most
senior employee at her work site. Pls.' Resp. to Def.'s L.R. 56.1 Stmt. ¶ 187. A
plaintiff's assertion that a workplace policy was implemented to her detriment is not
evidence of discriminatory animus unless "the plaintiff can point directly to a
discriminatory reason for the employer’s action." Cole v. Bd. of Trs. of N. Ill. Univ., 838
F.3d 888, 900 (7th Cir. 2016). Here, Smith has offered no evidence other than her own
speculation that the acting up policy was modified to provide fewer opportunities to
African American employees.
Hill does not argue that she was denied a specific acting up opportunity. She
testified, however, that as a staff assistant she was asked to perform the duties of
higher-paying positions without fair compensation. Assuming that Hill is correct that this
"informal acting up" constitutes "a form of discrimination," she offers no evidence that
other similarly situated non-African American individuals either were not asked to
perform the duties of other positions or were compensated for such "informal acting up"
tasks. See Pls.' Resp. to Def.'s Mot. for Summ. J. at 76. "For summary judgment
purposes, [a plaintiff] cannot create a factual dispute by stating that his job
responsibilities ought to have been something other than what the company expected."

40

Widmar v. Sun Chem. Corp., 772 F.3d 457, 464 (7th Cir. 2014). And "[g]uessing at an
employer's hidden animus or inner prejudice . . . is not enough to defeat summary
judgment." Brooks v. Avancez, 39 F.4th 424, 436 (7th Cir. 2022). Hill's assertion that
she was entitled to higher pay based on her work responsibilities provides no support
for her claim that she was denied pay because of her raise.
In the plaintiffs' response brief and their statement of additional facts, Anderson
asserts in support of his acting up claims, that "whites . . . were treated more favorably,"
but he offers no accompanying details. Pls.' Resp. to Def.'s Mot. for Summ. J. at 77;
Pls.' L.R. 56.1 Stmt. ¶ 136. In the statement of additional facts, Anderson cites to a
deposition exhibit that does not include the page numbers that he cites in support of his
acting up claims. Pls.' L.R. 56.1 Stmt. ¶ 136; see id. at Ex. 1. Because Anderson has
presented no evidence in support of his acting up claims, no reasonable juror could
conclude that he was denied acting up opportunities based on his race.
In response to Ealy's acting up claims, the City provided records showing that
Ealy "consistently acted up from June 2015 through September 2015 and July 2016
through September 2016." Def.'s Reply at 20. Ealy argues that her acting up claims
nonetheless should proceed to trial because her "recollection" of her acting up
opportunities conflicts with the City's records. Pls.' Resp. to Def.'s Mot. for Summ. J. at
75. But her unsupported contention that the records are wrong is insufficient to
withstand summary judgment. See Turner v. The Saloon, Ltd., 595 F.3d 679, 691 (7th
Cir. 2010) ("Although [plaintiff] disputes the accuracy of [employer]'s records, his mere
assertions are insufficient to create a jury issue.").
For the reasons described, the Court concludes that the City is entitled to

41

summary judgment on the plaintiffs' disparate treatment claims.
D.

Hostile work environment
The plaintiffs' hostile work environment claims in this case involve alleged racially

offensive conduct by different DWM employees against different individual plaintiffs. To
demonstrate that they were subject to a hostile work environment, each plaintiff must
show that (1) he or she was subject to unwelcome harassment; (2) the harassment was
based on race; (3) the harassment was severe or pervasive; and (4) there is a basis for
employer liability. Johnson, 892 F.3d at 900. The alleged conduct must be "sufficiently
severe or pervasive to alter the conditions of employment." Scruggs v. Garst Seed Co.,
587 F.3d 832, 840 (7th Cir. 2009). "[T]he standard may be met by a single extremely
serious act of harassment or by a series of less severe acts." Robinson v. Perales, 894
F.3d 818, 828 (7th Cir. 2018). Whether the alleged conduct meets this standard also
depends on factors such as the "severity of the allegedly discriminatory conduct, its
frequency, whether it is physically threatening or humiliating or merely offensive, and
whether it unreasonably interferes with an employee's work performance." Id.
"Whether harassment was so severe or pervasive as to constitute a hostile work
environment is generally a question of fact for the jury," unless the court concludes that
no reasonable jury could find the alleged conduct severe or pervasive. Johnson, 892
F.3d at 901.
The City argues that the plaintiffs' hostile work environment claims are timebarred because they rely on conduct that allegedly occurred outside the limitations
period. Specifically, the City contends that any allegedly discriminatory employment
actions that took place prior to June 29, 2013 for the plaintiffs' section 1981 claims or

42

prior to June 29, 2015 for their section 1983 claims are time-barred because they
occurred outside of the four-year limitations period for section 1981 claims or the twoyear period for section 1983 claims. See Def.'s Reply at 28 n. 2. But for hostile work
environment claims, "[p]rovided that an act contributing to the claim occurs within the
filing period, the entire time period of the hostile environment may be considered for the
purposes of determining liability." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
117 (2002). In Morgan, the plaintiff "presented evidence from a number of other
employees that managers made racial jokes, performed racially derogatory acts, made
negative comments regarding the capacity of blacks to be supervisors, and used
various racial epithets." Id. at 120. The Supreme Court concluded that because the
"very nature" of hostile work environment claims involves "repeated conduct," a
factfinder can hold a defendant liable for the "entire time period of the hostile
environment." Id. at 115, 117. Under this continuing violation doctrine, a "claim for
hostile work environment is timely as long as any act falls within the statutory time
period, even if the claim encompasses events occurring prior to the statutory time
period." Barrett v. Illinois Dep't of Corrs., 803 F.3d 893, 899 (7th Cir. 2015) (cleaned
up).
The plaintiffs contend that the racially hostile environment at DWM existed at
least "from 2011 onward." Pls.' Resp. to Def.'s Mot. for Summ. J. at 30. They have
adduced evidence that over the course of multiple years, they were subject to racially
derogatory comments, racist jokes, the presence of racially offensive symbols, and
racially-charged nicknames. Similar to the plaintiff in Morgan, all of these acts are used
to support the plaintiffs' claim of a work environment where they were repeatedly subject

43

to racist conduct over an extended period of time. Thus these racially offensive
incidents are all appropriately considered, collectively, as a single hostile work
environment claim. See Elliott v. Bd. of Educ. of City of Chicago, No. 20 C 2706, 2022
WL 874649, at *4-5 (N.D. Ill. Mar. 24, 2022) (concluding that co-workers' repeated
offensive comments gave rise to a single hostile work environment claim). To the
extent the plaintiffs are able to establish that one of these acts occurred during the
relevant statutory period, and that the acts are sufficiently related to constitute the same
hostile work environment claim, the acts, and thus the plaintiffs' claims, are not timebarred.
Several plaintiffs contend that DWM employees used the n-word either in their
presence or in the presence of other African American employees. The use of the nword in a workplace is strong evidence of a hostile work environment. The Seventh
Circuit has noted that "in light of its threatening use throughout American history, this
particular epithet can have a highly disturbing impact on the listener." Robinson, 894
F.3d at 828 (collecting cases). "Comments made to non-plaintiff co-workers carry less
weight in the evaluation of a hostile environment claim, but they are not irrelevant."
Johnson, 892 F.3d at 902. Comments that plaintiffs did not hear directly but were told
about by a co-worker are the "weakest evidence" in support of a hostile work
environment claim, but "coupled with other evidence this testimony might have
relevance." Id. at 902, 903.
The Court finds that the evidence Glenn, Henry, Hill, Anderson, Laws, Ealy, and
Cooper have produced regarding the severe and/or pervasive use of the n-word at
DWM is sufficient to withstand summary judgment on their hostile work environment

44

claims. Glenn says that his supervisor, Pope, called him the n-word during a meeting in
2016 or 2017. Henry learned from a co-worker that his supervisor had called him the nword. Hill testified that she heard her supervisor, Stark, use the n-word on at least one
occasion between 2010 and 2015, and that she heard an individual use the n-word
during a meeting in Murphy's office. Anderson heard his supervisor, Williams, call him
the n-word in 2017. Laws was repeatedly called the n-word by co-workers. Ealy, Laws,
Cooper and Anderson consistently heard either their supervisors or their co-workers use
the n-word to refer to other African American employees. "A plaintiff's repeated
subjection to hearing [the n-word] could lead a reasonable factfinder to conclude that a
working environment was objectively hostile." Id. at 903.
Additionally, each of these plaintiffs has adduced evidence of racist conduct
and/or harassment outside of the severe or pervasive use of the n-word in their work
environments. Cooper saw KKK symbols and swastikas at the Sawyer facility
throughout his employment, and Glenn observed racist graffiti, including KKK imagery,
on DWM property in 2014 or 2015. See Cerros v. Steel Techs., Inc., 398 F.3d 944, 951
(7th Cir. 2005) (concluding evidence of racist graffiti at workplace supported hostile
work environment claim). Laws saw a noose on DWM property in 2017. See Cole, 838
F.3d at 896 ("Given [the noose's] disturbing history and status as a symbol of racial
terror, we have no difficulty assuming that the harassment could be treated as based on
race."). Anderson overheard two superiors, including his supervisor, sharing racist
jokes. Henry saw a printout of an e-mail shared among DWM employees that included
a photo with a gorilla's face superimposed on the body of the highest ranking African
American employee at DWM at the time. Hill also viewed an e-mail that included a

45

racially derogatory comment about an African American employee. Ealy testified that
over several years, multiple co-workers repeatedly referred to her as "Black bitch." Pls.'
L.R. 56.1 Stmt., Ex. 6 at 279:13-24; Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908,
912 (7th Cir. 2010) (denying employer's summary judgment motion where plaintiff was
called "Black bitch" among other racial epithets by co-workers over a three-month
period).
The City argues that only conduct that is directed at the plaintiffs themselves can
be used to support their hostile work environment claims. See generally Def.'s Reply at
31-40. But the Seventh Circuit has stated that the treatment of a plaintiff's co-workers is
relevant evidence that may support a hostile work environment claim. Johnson, 892
F.3d at 902 (noting knowledge of racist conduct directed towards co-workers may have
impacted plaintiffs' working environments). A reasonable jury could find that the racist
conduct that was aimed at African American co-workers, especially conduct as severe
as the use of the n-word and the display of nooses, impacted the work environment of
the Black plaintiffs who were the direct targets of this conduct as well as those who
witnessed it. See Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir. 2007)
("[O]ne could be in the target area because a group of which one was a member was
being vilified, although one was not singled out."); see also E.E.O.C. v. WRS
Infrastructure & Env't, Inc., No. 09 C 4272, 2011 WL 4460570, at *10 (N.D. Ill. Sept. 27,
2011) (concluding presence of noose at workplace supported hostile work environment
claim for all African American plaintiffs regardless of whether they observed the noose
firsthand). Glenn, Henry, Hill, Anderson, Laws, Ealy, and Cooper have adduced
sufficient evidence to permit a reasonable jury to find they were subjected to a hostile

46

work environment.
Edmond and Smith, however, have not presented evidence to support a hostile
work environment claim. Curiously, Edmond's individual claims are not mentioned at all
in the plaintiffs' response brief. And the only information about the allegedly hostile
work environment Edmond faced that is in the plaintiffs' statement of facts is Edmond's
assertion that Lynch referred to African American employees as "you people." Pls.' L.R.
56.1 Stmt. ¶ 159. Without further details or context, there is no basis for the Court to
conclude that Lynch's use of the phrase was racially derogatory. Winston v. Dart, No.
18 C 5726, 2021 WL 3633918, at *13 (N.D. Ill. Aug. 17, 2021) (Kennelly, J.) (concluding
lack of contextual evidence precluded finding that employee's use of the term "you
people" was race-based).
As for Smith, she testified that she once observed what she considered a racially
offensive symbol hanging on the wall of a driver's room at DWM. But this incident
occurred in 2004, well before the start of the plaintiffs' chosen statutory period, which
begins in 2011. The only other evidence Hill presents in support of her hostile work
environment claim is that in 2013, Bresnahan failed to introduce himself to her. This
slight falls far below the level of severity required to support an actional hostile work
environment claim. See McKenzie v. Milwaukee Cnty., 381 F.3d 619, 625 (7th Cir.
2004) (holding plaintiff's claim that supervisor failed to greet her did not establish hostile
work environment); Patton v. Indianapolis Pub. Sch. Bd., 276 F.3d 334, 339 (7th Cir.
2002) (holding plaintiff's allegations that her supervisors were rude and ignored her
suggestions did not rise to the level of an actionable hostile work environment claim).
The evidence provided by Glenn, Henry, Hill, Anderson, Laws, Ealy, and Cooper

47

is sufficient to suggest that their supervisors and co-workers "were using racist
language in a pervasive way to establish racial and hierarchical dominance in the
workplace." Johnson, 892 F.3d at 904. A reasonable jury could conclude that these
plaintiffs were subject to a hostile work environment. The Court therefore denies
summary judgment on these plaintiffs' hostile work environment claims. The Court
grants summary judgment in favor of the City, however, on the hostile work environment
claims of Edmond and Smith.
E.

Monell
The plaintiffs' claims against the City of Chicago must be evaluated under the

standard for municipal liability established in Monell v. Department of Social Services of
the City of New York, 436 U.S. 658 (1978). 9 "[U]nits of local government are
responsible only for their policies rather than misconduct by their workers." Fairley v.
Fermaint, 482 F.3d 897, 904 (7th Cir. 2007). To sustain a Monell claim against the City
the plaintiffs must adduce evidence of "(1) an express policy that, when enforced,
causes a constitutional deprivation; (2) a widespread practice that, although not
authorized by written law or express municipal policy, is so permanent and well settled
as to constitute a custom or usage with the final force of law; or (3) an allegation that the
constitutional injury was caused by a person with final policymaking authority." Lewis,
496 F.3d at 656 (citation omitted). Monell liability may arise from a "city's 'policy of
inaction' in light of notice that its program will cause constitutional violations." J.K.J. v.

To establish municipal liability under Monell, the plaintiff must demonstrate an
underlying constitutional violation. See Pyles v. Fahim, 771 F.3d 403, 412 (7th Cir.
2014). Because Edmond and Smith did not withstand summary judgment on their
hostile work environment or disparate treatment claims, the Court's Monell liability
analysis applies only to the remaining plaintiffs.
9

48

Polk County, 960 F.3d 367, 378 (7th Cir. 2020) (quoting Connick v. Thompson, 563
U.S. 51, 61 (2011)).
The plaintiffs present three arguments in support of establishing Monell liability:
1) "the City is liable for DWM’s widespread custom and practice of permitting and
condoning racially-harassing language and behavior in the DWM workplace," 2) "the
City is liable for its inaction in the face of a known and obvious risk that DWM
employees would be subjected to racial discrimination and harassment," and 3) "the
City is liable under a final policymaker theory for former Commissioner Barrett Murphy’s
conduct." Pls.' Resp. to Def.'s Mot. for Summ. J. at 14-16.
To establish the existence of a custom or practice, at the summary judgment
stage, "it is enough that a plaintiff present competent evidence tending to show a
general pattern of repeated behavior (i.e., something greater than a mere isolated
event)." Davis v. Carter, 452 F.3d 686, 694 (7th Cir. 2006). The evidence in the record
is sufficient to permit a reasonable jury to find that multiple plaintiffs experienced
consistent, repeated and sometimes daily racial harassment through the placement of
racist symbols and the use of racial slurs, epithets and insults by supervisors and coworkers. See, e.g., Pls.' L.R. 56.1 Stmt. ¶¶ 137, 197, 222. This alleged racial
harassment took place at multiple different DWM plants and locations, and it involved
employees at various levels of management, including those at the highest levels of
DWM leadership. See Pls.' Resp. to Def.'s Mot. for Summ. J. at 38-40. Given the
duration, frequency, and severity of the racial harassment the plaintiffs allege, a
reasonable jury could find there was a widespread practice of condoning and facilitating
racial harassment at DWM. See Barth v. Village of Mokena, No. 03 C 6677, 2006 WL

49

862673, at *28 (N.D. Ill. Mar. 31, 2006) ("[T]he length of time and numerous players in
the alleged harassment could support a reasonable factfinder's conclusion that a
departmental custom was sufficiently widespread for § 1983 liability.").
The racist e-mails shared among DWM staff, as well as the OIG's 2017 report,
also support the plaintiffs' widespread practice or custom theory. 10 The OIG's
investigation revealed "egregious, offensive racist and sexist e-mails distributed by and
among employees . . . that extended to senior levels of department management." Pls.'
L.R. 56.1 Stmt., Ex. 45 at DWM-Edmond-086876. The OIG also found that these e-mail
messages "suggested the existence of an unrestricted culture of overtly racist and
sexist behavior and attitudes within the department." Id.
The City argues that the OIG report, and the accompanying e-mails, are
irrelevant because "none of the e-mails pertained to or were sent to the individual
Plaintiffs in this case." Def.'s Reply at 41. First, at least two plaintiffs, Hill and Henry,
testified that they had viewed racially offensive e-mails sent by DWM employees, which
indicates that the contents of these e-mail messages were at times shared beyond the
direct recipients. See Pls.' Resp. to Def.'s Mot. for Summ. J. at 39, 45. Second, even if
no plaintiffs viewed the e-mail messages directly, the fact that multiple DWM employees
composed, shared, and replied to egregiously racist e-mail messages could be
indicative of how those employees may have condoned or participated in the alleged

Rather than directly challenge the plaintiffs' arguments regarding a widespread
custom or practice of discrimination at DWM, the City asserts that the evidence the
plaintiffs rely on to support their argument, specifically the contents of the OIG reports,
amounts to inadmissible hearsay. Def.'s Reply at 41. But as discussed earlier, the
contents of the OIG report appear to be admissible under Federal Rule of Evidence
803(8)(A)(iii).
10

50

culture of racial harassment at DWM or turned a blind eye to the racist treatment that
other employees received. See Abreu v. City of Chicago, No. 19 C 2161, 2022 WL
1487583, at *18 (N.D. Ill. May 10, 2022) ("It is enough that the e-mails evince a culture
of racism at DWM that could lead to—and allegedly did lead to—an employee's
experiencing a hostile work environment."). EEO officer Mark Pando testified that EEO
division policy provides that failing to report potential EEO violations is equivalent to
condoning that conduct, and he noted that failure to discipline an employee for racist
conduct could "empower" that employee to continue. Pls.' L.R. 56.1 Stmt., Ex. 20 at
104:11-24. In sum, the plaintiffs have produced sufficient evidence to submit a
reasonable jury to find that the City had a widespread custom or practice of condoning
racial harassment at DWM.
A genuine factual dispute also exists regarding whether the City disregarded a
known and obvious risk that the plaintiffs could be subject to racially discriminatory
treatment. The City challenges the plaintiffs' contentions regarding inefficiencies in the
EEO reporting process. See Def.'s Reply at 42. But the testimony of DWM leadership
and EEO personnel, considered in the light most favorable to the plaintiffs, would permit
a reasonable finding that there were wide gaps in DWM's anti-discrimination policies
and procedures and that DWM personnel had knowledge of those gaps. For example,
despite communication from an EEO Division employee highlighting the importance of
EEO training for supervisors and the DWM EEO liaison's acknowledgement of
deficiencies in the department's EEO training process, DWM did not implement
mandatory EEO training until 2017. Def.'s L.R. 56.1 Stmt. ¶ 225. Murphy testified that
he believed one DWM employee who authored racially offensive e-mail messages, Paul

51

Hansen, had "no reason" to anticipate that he would be subject to discipline under the
City's EEO policy. Pls.' L.R. 56.1 Stmt. ¶ 23. Furthermore, the City's EEO Division itself
had severe resource constraints that impeded its ability to fully investigate
discrimination claims. EEO officer Pando testified that due to understaffing, around
2015 to 2017, the EEO Division was forced to put cases on hold regardless of whether it
believed that the complaint had merit. Pls.' L.R. 56.1 Stmt. ¶ 81. Given the awareness
of deficiencies in DWM's EEO training policies as well as the EEO division's inability to
properly evaluate discrimination complaints, a reasonable jury could find that the City
disregarded an obvious risk that employees could be subject to racial harassment and
discrimination. See Polk County, 960 F.3d at 379 (sustaining jury verdict on Monell
liability finding due to evidence of deficiencies in municipality's sexual abuse prevention
program).
The City notes that various plaintiffs testified that they did not they file EEO
complaints regarding the racist treatment they allegedly faced. See Def.'s Reply at 41.
But the plaintiffs repeatedly stated that they did not report the racist conduct in part due
to confusion surrounding the EEO reporting process. For example, Glenn testified that
he did not feel comfortable reporting discrimination because he believed a
discrimination complaint would need to be filed with the very individuals who had
engaged in the racist conduct he would be reporting. See Pls.' L.R. 56.1 Stmt., Ex. 8 at
158:17-24. A reasonable jury could find that if EEO training had been properly
implemented at DWM, the plaintiffs would have been appropriately informed of their
options for reporting the discriminatory conduct they faced as well as of the safeguards
that were in place to protect them from retaliation due to their reporting.

52

To support their "final policymaker" theory under Monell, the plaintiffs identify
Murphy, the former commissioner of DWM, as the official with final authority over
DWM's EEO policy. "Whether an entity has final policymaking authority is a question of
state or local law." Milestone v. City of Monroe, Wis., 665 F.3d 774, 780 (7th Cir. 2011).
The Seventh Circuit has stated that for a government official to be considered a final
policymaker for Monell purposes, that official must be in charge of "making policy"
rather than "merely implent[ing] legislative policy." Gernetzke v. Kenosha Unified Sch.
Dist. No. 1, 274 F.3d 464, 468 (7th Cir. 2001) (emphasis added) (citing Auriemma v.
Rice, 957 F.2d 397 (7th Cir. 1992)).
The Chicago Municipal Code provides that the commissioner of human
resources is responsible for issuing personnel rules. CHI. MUNICIPAL CODE § 2-74-050.
It is undisputed that "DHR promulgates the EEO Policy" and the task of "implementing
and enforcing" the policy is delegated to the City department heads, including the DWM
commissioner. Pls.' Resp. to Def.'s Mot. for Summ. J. at 21. But Murphy's role as the
individual in charge of implementing the EEO policies established by another
government entity is insufficient to permit a reasonable jury to find that he had final
authority over EEO policymaking. See Lovette-Cephus v. Village of Park Forest, 30 F.
Supp. 3d 754, 761 (N.D. Ill. 2014) ("[A] person with solely executive power does not
have policymaking authority under Section 1983."). In addition, another factor used to
determine whether an official can be considered a final policymaker is "whether the
official is constrained by policies of other officials or legislative bodies." Valentino v.
Village of South Chicago Heights, 575 F.3d 664, 676 (7th Cir. 2009). As the plaintiffs
acknowledge, the commissioner's authority to implement and enforce DHR's EEO policy

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is constrained by the City's mandate that department actions not conflict with existing
DHR policies. See Pls.' Resp. to Def.'s Mot. for Summ. J. at 21. Based on the
evidence in the record, no reasonable jury could conclude that Murphy had final
policymaking authority under Monell.
The Court concludes that the plaintiffs have adduced sufficient evidence that the
City had a custom or policy of condoning racial harassment and discrimination at DWM
as well as inaction in the face of a risk of potential constitutional violations. This is
sufficient for their claims under Monell to withstand summary judgment.
Conclusion
For the foregoing reasons, the Court grants the City's motion for summary
judgment [dkt. no. 291] on the plaintiffs' claims of discrimination involving denial of
promotion, overtime pay, shift assignment, and acting up; Anderson's discriminatory
discipline claims; and Edmond and Smith's hostile work environment claims. The Court
denies the City's motion for summary judgment on Ealy, Cooper, and Glenn's
discriminatory discipline claims and the remaining plaintiffs' hostile work environment
claims. Those claims will proceed to trial. Counsel are directed to promptly confer
regarding the anticipated witnesses and anticipated length of trial given the dismissal of
a number of claims, and they are to file a joint status report in this regard by no later
than April 19, 2024. The Court notes that it likely will be moving the start date for the
trial to Wednesday, June 5, 2024. A telephonic status hearing is set for April 22, 2024
at 9:00 a.m., using call-in number 888-684-8852, access code 746-1053.
Date: April 11, 2024

________________________________
MATTHEW F. KENNELLY
United States District Judge
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