Colbert v. State of Illinois, Department of Transportation
Filing
84
MEMORANDUM Opinion and Order. Plaintiff Colbert forfeited his retaliation claim against Defendant IDOT and all claims against McKay as a Defendant. Defendants' motion for summary judgment 51 is granted as to these claims (Counts IIIV). But P laintiff has raised a genuine issue of material fact regarding whether he is similarly situated to white IDOT employees who were treated more favorably than him, and whether IDOT's explanation for his discharge was pretextual. Accordingly, Defe ndant IDOT's motion for summary judgment on Count I (Title VII race discrimination) 51 is denied. The parties are encouraged to discuss a settlement. Status hearing set for 3/20/2020 at 9:00 a.m. Signed by the Honorable Rebecca R. Pallmeyer on 2/27/2020. Notice mailed by judge's staff (ntf, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LLOYD COLBERT,
Plaintiff,
v.
ILLINOIS DEPARTMENT OF
TRANSPORTATION and JAMES McKAY,
Defendants.
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)
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)
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No. 17 cv 6237
Judge Rebecca R. Pallmeyer
MEMORANDUM ORDER AND OPINION
After a physical altercation between Plaintiff Lloyd Colbert and his subordinate, Darrin
Monroe, both men were dismissed from their employment with Defendant Illinois Department of
Transportation (“IDOT”). Plaintiff, who is African-American, alleges that IDOT discriminated
against him on the basis of his race, and that his fight with Monroe is mere pretext for his
discharge. Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity
Commission in September 2016 in which he alleged he was terminated on the basis of his race
and in retaliation for his having filed a complaint with the Illinois Office of the Executive Inspector
General (“OEIG”) about the incident involving Monroe. Plaintiff then filed this action against
Defendants IDOT and James McKay, his direct supervisor, alleging race discrimination in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. §§ 1981,
1983. Plaintiff also asserts that both Defendants retaliated against him for his OEIG report, in
violation of the Illinois State Officials and Employees Ethics Act, 5 ILCS 430/15-10. Defendants
contend they had non-discriminatory reasons for disciplining and removing Plaintiff, and have
asked the court to enter summary judgment on all counts [51]. The parties’ failure to identify the
person(s) who made the discharge decision for Plaintiff complicates the analysis of this motion.
For the reasons explained below, Defendants’ motion for summary judgment is granted in part
and denied in part.
BACKGROUND 1
Plaintiff Colbert was employed by IDOT as a Lead Worker (supervisor) with IDOT’s
Emergency Traffic Patrol (“ETP”) unit until August 19, 2016 when IDOT terminated his
employment, allegedly for engaging in a physical altercation with his supervisee, Darin Monroe,
one month earlier. (Pl.’s Local Rule 56.1 Additional Statements of Fact (“Pl.’s SOF”) [66] ¶ 1.)
The conflict between Plaintiff and Monroe began in April 2016 when Plaintiff placed a
memorandum in the window of his office reminding ETP employees of IDOT’s existing policies
regarding relocating disabled vehicles on the roadway. (Id. ¶ 4.) Plaintiff claims that Monroe had
previously violated the policy (Colbert Dep. 80:1–10, Ex. B to Def.’s SOF), and Plaintiff believes
he was angry about the fact that Plaintiff had reprimanded him for that earlier violation. (Pl.’s SOF
¶ 4.) Whatever the reason, Monroe allegedly took issue with the memorandum, leading to a
heated conversation with Plaintiff. (Id.) Plaintiff testified that he interpreted some of Monroe’s
statements and actions during this confrontation as threats. (Pl.’s Resp. [66] to Def.’s Local Rule
56.1 Statement of Facts (“Def.’s SOF”) [54] ¶¶ 11–13.) The day of the conversation, Plaintiff
wrote an email to James (“Jim”) McKay, assistant to the patrol manager and Plaintiff’s direct
supervisor, 2 describing the incident with Monroe, and followed up the next day. 3 (Pl.’s SOF ¶¶ 5,
7; Def.’s SOF ¶¶ 7, 16.) Plaintiff’s usual manner of writing up subordinates for rule infractions
was to send an email to the patrol manager, Michael Schivarelli, with a copy to McKay. (Def.’s
1
Defendant IDOT makes evidentiary objections to many of Plaintiff Colbert’s
Additional Statements of Fact [66]. (See Def.’s Reply in Supp. of Mot. for Summ. J. (“Def.’s
Reply”) [78] at 1–3.) The court will address IDOT’s objections, as necessary, in the Discussion.
2
Plaintiff testified that normally, lead workers such as himself would report to “leadlead workers” who ran one of three shifts. (Colbert Dep. 14:3–10.) In 2016, only Zen McHugh
and Mark Jercha were lead-lead workers, and because there was no lead-lead worker assigned
to the night shift when Plaintiff worked, he instead reported directly to Jim McKay. (Colbert Dep.
11:17–23, 14:20–22.)
3
Plaintiff also stated that he talked to Zen McHugh, a lead-lead worker, about the
incident, and McHugh said he would handle it. (Def.’s SOF ¶ 19.) Dan Giglio, a fellow lead worker
and the union steward, also told Plaintiff that he would talk to Monroe. (Def.’s SOF ¶ 20.)
2
SOF ¶ 6.) If necessary, those men would then elevate the matter to the Personnel Manager (at
the time, Georgina Syas) to decide whether disciplinary action should be taken. (Id. ¶ 8; Colbert
Dep. 57:17–58:3.) In response to Plaintiff’s follow-up conversation, McKay allegedly told Plaintiff
that he (McKay) would “handle it.” (Pl.’s SOF ¶ 5.) After this incident, Monroe apologized to
Plaintiff, and Plaintiff accepted the apology. (Def.’s SOF ¶ 23.) There was no further tension
between Plaintiff and Monroe until July 2016. (Id. ¶ 24.)
I.
The Physical Altercation
In July 2016, Monroe arrived at work for a sixth consecutive day and learned that he had
been assigned to a new patrol area. (Exs. G, P to Def.’s SOF.) As Colbert explained in his
deposition, ETP workers are assigned to monitor different stretches of highway in the Chicago
area. (Colbert Dep. 61:10–13.) For example, patrol area 4/5 covered the area of the Kennedy
Expressway (I-190, I-90, I-94) and the Dan Ryan Expressway (I-90, I-94) between Fullerton
Avenue and 71st Street. (Id. 97:11–14.) ETP employees who work a sixth straight day are
ordinarily permitted to choose their patrol areas for that day; Monroe went to the office to find out
why this practice had not been followed. (Id.) The parties dispute what happened when Monroe
reached the office. According to Plaintiff, Monroe began arguing with Plaintiff about the changed
assignment and insulted Plaintiff, calling him a “punk pussy motherfucker” while leaning over
Plaintiff’s desk. (Pl.’s SOF ¶ 9; Pl.’s Resp. to Def.’s SOF ¶ 27.) Plaintiff responded by telling
Monroe to go home. (Id.) Monroe did exit the office, and as Plaintiff began to sign Monroe out of
work on the sign-in sheet in his office, Plaintiff asserts, Monroe returned to the office, bumped
Plaintiff with his chest, and punched Plaintiff’s right cheek. (Pl.’s SOF ¶ 9.) Plaintiff grabbed
Monroe’s wrist and pushed Monroe away. (Id.) Dan Giglio and Kevin Olson, two other IDOT
employees who had entered the office, grabbed Monroe to separate him from Plaintiff, and after
Plaintiff pushed Monroe away, Giglio, Olson, and Monroe all fell to the floor. (Id.)
On the day of the incident, July 8, 2016, Darin Monroe recorded his account of the
altercation in a memorandum to James McKay as part of the investigative process. (See Ex. P
3
to Def.’s SOF; see also Personnel Policies Ch. 12-2(A), Ex. 9 to Pl’s SOF.) Monroe also wrote
his version of the events in a July 8, 2016 witness report to the Illinois State Police. (Ex. G to
Def.’s SOF.) Monroe wrote that Plaintiff had raised his voice and told Monroe that if he did not
like the changed assignment, he could go home. (Ex. P to Def.’s SOF.) Monroe recalled that he
asked Plaintiff “why [Plaintiff was] acting like a woman,” and that Plaintiff responded by jumping
out of his seat behind the desk, charging at Monroe, bumping him in the chest, and pushing him.
(Id.) At that point, Monroe wrote, Giglio and Olson came in from the hall and pulled Monroe away
from Plaintiff, but as they were pulling him away, Plaintiff punched Monroe in the face, and Monroe
and the two other men fell to the floor. (Id.) Because of the fall, Monroe felt a sharp pain in his
leg and was not able to stand on his own. (Id.)
Dan Giglio and Kevin Olson, who witnessed the incident, also wrote and signed
statements describing the altercation. (Ex. F to Def.’s SOF.) Giglio reported that he heard and
saw Plaintiff and Monroe arguing, yelling, and pushing each other, so he and Olson got between
the men to separate them. (Id.) Giglio attempted to exit the office, but when Plaintiff and Monroe
resumed arguing and pushing each other, Giglio again got between the two and then, “during all
the pushing,” Giglio, Olson, and Monroe tripped over the rug and fell to the floor. (Id.) Olson’s
account is similar: Olson recalled that he was in the office at the time the argument began, but
prior to its escalation to a physical altercation, saw Giglio coming down the hallway and went into
the hallway to speak to Giglio. (Id.) As they returned to the office, the argument between Colbert
and Monroe “escalated to push and shoving.” (Id.) Olson recalls that he and Giglio tried to
separate Colbert and Monroe, but that he (Olson), Monroe, and Giglio tripped over the rug and
fell to the floor. (Id.) Olson reports that “hands [and] arms were going all over so I don’t know if
they were punches,” but he did see Colbert and Monroe “bump each other in the chest.” (Id.)
Plaintiff does not dispute that Monroe was taken to the emergency room by ambulance
after the altercation. (Pl.’s Resp. to Def.’s SOF ¶ 41.) Nor does Plaintiff dispute that he pushed
Monroe, though he claims that it was an act of self-defense.
4
(Id. ¶ 30.)
Plaintiff also
acknowledges that police reports were filed by Illinois State Police officers who were present at
the ETP building at the time of the altercation, and who had come to the office to see what was
going on. (Id. ¶¶ 31, 41.) Neither Plaintiff nor Monroe was charged criminally.
II.
IDOT Policies
IDOT’s Personnel Policies Manual lays out the Department’s policy regarding disruptive
conduct and violence in the workplace. (Personnel Policies Chs. 10, 12.) Plaintiff admits that he
received a copy of the Personnel Policies. (Pl.’s Resp. to Def.’s SOF ¶ 65.) The workplace
violence policy prohibits “violence, threats of violence, harassment, intimidation, and other
behaviors which by intent, action, or outcome threatens, frightens, harms or endangers the safety
of others.” (Personnel Policies Ch. 12-1.) The policy warns that employees who are violent or
who threaten violence “may be removed from the premises and may be subject to disciplinary
action up to and including discharge, criminal penalties, or both.” (Id.) Plaintiff characterizes this
as a “zero-tolerance” policy (Pl.’s SOF ¶ 16) that was not enforced evenly, but admits that the
words “zero tolerance” do not appear in the policy itself. (Pl.’s Resp. to Def.’s SOF ¶ 64.) The
Personnel Policies also prohibit disruptive conduct, which includes “instigating or participating in
disruptive behavior, horseplay, interrupting work or impeding the work effort of others.”
(Personnel Policies Ch. 10-3(E).)
The workplace violence policy also specifies the investigative process that should follow
an incident of violence. Any employee who witnesses workplace violence must report it to his
supervisor and must subsequently submit a written statement describing the incident. (Id. Ch.
12-2.) Supervisors are required to communicate to others up the chain of command that the
incident occurred, and are responsible for submitting written reports of incidents of workplace
violence to Labor Relations or the Office of Quality, Compliance & Review. (Id.) The Labor
Relations department decides how to respond to the incident, and, pursuant to the policy, the
“department’s level of response will be in direct correlation to the severity of the incident.” (Id.)
Labor Relations officials may recommend administrative action, “including the imposition of
5
discipline, up to and including discharge, and the involvement of local or state law enforcement.”
(Id.)
III.
Plaintiff’s Dismissal
After Plaintiff’s altercation with Monroe, on July 9, 2016, Zen McHugh, a lead-lead worker,
told Plaintiff over the phone to stay home until further notice. 4 (Pl.’s Resp. to Def.’s SOF ¶ 42.)
On July 12, 2016, Plaintiff received a letter signed by Georgina Syas, the Personnel Manager in
2016, on behalf of John Fortmann, the deputy director of highways for Region/District One
(covering Chicago and surrounding counties), informing Plaintiff that he had been placed on paid
administrative leave. (Id. ¶¶ 43–44.) McKay received a copy of this letter. (Id. ¶ 44.) At a predisciplinary hearing later in July, Plaintiff was charged with disruptive conduct and violence in the
workplace. (Id. ¶¶ 46–47.) Plaintiff, Syas, Tom Wilcox (a union representative), McKay, Jim
Stumpner (the Bureau Chief of Maintenance), and Judy LaPorte (there to record the meeting)
attended the pre-disciplinary hearing. (Id. ¶¶ 46, 53–55.) After the hearing, Plaintiff received a
letter dated July 26, 2016 informing him that he was being suspended for up to 30 days without
pay, pending a decision regarding whether he would be discharged. (Id. ¶ 60.) The letter was
signed by Georgina Syas on behalf of John Fortmann; McKay and others received copies. (Id.)
Neither party clearly explained who, specifically, is involved in the investigation process
leading to a decision to discipline an IDOT employee or who makes the final decision to discharge
employees. Plaintiff does not know, nor did Defendant identify, the individual or individuals who
made the final decision to suspend Plaintiff pending discharge. (Id. ¶ 61.) Defendant explained
that disciplinary matters were occasionally elevated to Syas (Def.’s SOF ¶ 8), but the policies
suggest that the decision is made, in part, by Labor Relations officials or staff in the Office of
Quality, Compliance & Review. (Personnel Policies Ch. 12.) Michael Varlotta, IDOT’s Labor
4
The parties’ factual submissions suggest that James McKay was higher in the
chain of command than lead-lead workers, but it does not appear that lead-lead workers reported
directly to him.
6
Relations Director since early 2017, testified that he has authority to investigate personnel issues
and can recommend termination, but for unionized employees like Plaintiff, Varlotta has no
authority to make a final disciplinary decision more severe than a 20-day suspension. 5 (Varlotta
Dep. 13:7–24, Ex. 2 to Pl.’s SOF.) When the Labor Relations department concludes that an
employee should be discharged, the department forwards the information and recommendation
to Central Management Services (“CMS”), and someone at CMS (again, the parties do not identify
the specific individual) will approve or deny the decision. (Id. 14:1–9.) The letter ultimately
terminating Plaintiff’s employment was signed by Syas on behalf of Fortmann. (Pl.’s Resp. to
Def.’s SOF ¶ 62.)
Like Plaintiff, Monroe, also an African American man (see Ex. 12 to Pl.’s SOF ¶¶ 11–12;
Ex. U to Def.’s SOF), was discharged after the altercation. (Id. ¶ 66.) Plaintiff’s union filed a
grievance on Plaintiff’s behalf, and he was offered a Last Chance Agreement in October 2017.
(Id. ¶ 69.) Had he accepted the agreement, Plaintiff could have returned to work; Plaintiff testified
that he chose not to do so because the agreement included a two-year probationary period during
which any infraction would result in his dismissal with no right of appeal, and because the
agreement did not include an offer of back pay. (Colbert Dep. 178:20–179:4, Ex. B to Def.’s
SOF.)
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The court “view[s]
the record in the light most favorable to [the nonmoving party], and draw[s] all inferences in his
5
Mr. Varlotta personally oversees Districts Three, Five, and Seven (Plaintiff worked
in District One), and supervises employees who are involved in disciplinary decisions for
employees in other Districts as well. (Varlotta Dep. 12:1–11.) He testified that his employees
usually “deal[ ] with discipline directly,” but also stated that he would make the decision to
terminate an employee from District One, where Plaintiff worked. (Id. 12:8–9, 15:14–20.)
7
favor.” Petties v. Carter, 836 F.3d 722, 727 (7th Cir. 2016). Summary judgment should be entered
only if the evidence is such that no reasonable jury could return a verdict in favor of the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
DISCUSSION
I.
Abandonment of Claims
Plaintiff’s First Amended Complaint [16] includes four counts: a Title VII race discrimination
claim against Defendant IDOT (Count I); a race discrimination claim under 42 U.S.C. §§ 1981 and
1983 against Defendant McKay (Count II); a state law retaliation claim under the Illinois State
Officials and Employees Ethics Act, 5 ILCS 430/15-10, against Defendant IDOT (Count III); and
the same Illinois state law retaliation claim against Defendant McKay (Count IV). In its motion for
summary judgment, Defendant IDOT argued that Counts II and IV against Defendant McKay
should be dismissed because Plaintiff never served McKay. (Def.’s Mem. in Supp. of Mot. for
Summ. J. (“Def.’s MSJ”) [52] at 6.) Defendant also argued that summary judgment is appropriate
on Count III, Plaintiff’s state law claim against Defendant IDOT, because Plaintiff did not engage
in protected activity and, even if he did engage in protected activity, he could not establish a
causal connection between the protected activity and his termination because of his own
disruptive conduct. (Id. at 11–13.) In any case, Defendant IDOT asserts, Plaintiff’s state law
retaliation claim against the IDOT is barred by sovereign immunity. (Id. at 14–15.)
Plaintiff did not respond to these arguments, nor has Plaintiff suggested he has good
cause for failing to serve Defendant McKay. See FED. R. CIV. P. 4(m). Indeed, Plaintiff’s brief
does not refer to McKay as a defendant, or address his state law retaliation claims against
Defendants IDOT or McKay at all. Accordingly, Plaintiff has abandoned Counts II–IV of his First
Amended Complaint. See Gates v. Bd. of Educ. of the City of Chicago, 916 F.3d 631, 641 (7th
Cir. 2019) (“[Defendant’s] motion sought summary judgment on all claims. In opposing summary
judgment in the district court, [plaintiff] failed to assert [his retaliation claim]. . . . The district court
was not required to address a claim or theory that plaintiff did not assert.”); Nichols v. Michigan
8
City Plan Planning Dep’t, 755 F.3d 594, 600 (7th Cir. 2014) (“The non-moving party waives any
arguments that were not raised in its response to the moving party’s motion for summary
judgment.”); Keck Garrett & Assocs., Inc. v. Nextel Commc’ns, Inc., 517 F.3d 476, 487 (7th Cir.
2008) (“Nextel specifically requested summary judgment on the quantum meruit claim. Keck
Garrett, however, did not defend that claim in its reply to Nextel’s motion for summary judgment.
By failing to present its argument to the district court, Keck Garrett abandoned its claim.”). The
court will address the merits only of Plaintiff’s race discrimination claim against Defendant IDOT.
II.
Title VII Claim Against Defendant IDOT
The primary question in a Title VII discrimination case is “whether the evidence would
permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other
proscribed factor caused the discharge or other adverse employment action.” Ortiz v. Werner
Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). The court must assess the evidence “as a whole,
rather than asking whether any particular piece of evidence proves the case by itself.” McDaniel
v. Progress Bell Locomotive, Inc., 940 F.3d 360, 368 (7th Cir. 2019) (quoting Ortiz, 834 F.3d at
765). While courts in this Circuit no longer consider whether evidence of discrimination is “direct”
or “indirect,” Ortiz, 834 F.3d at 766, a “plaintiff may utilize the McDonnell Douglas ‘burden-shifting
framework’” to make a showing of unlawful discrimination. McDaniel, 940 F.3d at 368 (quoting
David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017); McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). “Under this approach, the plaintiff must show
evidence that ‘(1) [he] is a member of a protected class, (2) [he] was meeting the defendant’s
legitimate expectations, (3) [he] suffered an adverse employment action, and (4) similarly situated
employees who were not members of [his] protected class were treated more favorably.’”
McDaniel, 940 F.3d at 368 (quoting Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 719 (7th Cir.
2018)). “If the plaintiff meets each element of [his] prima facie case, ‘the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action,
at which point the burden shifts back to the plaintiff to submit evidence that the employer’s
9
explanation is pretextual.’” McDaniel, 940 F.3d at 368 (quoting Skiba, 884 F.3d at 719–20).
Notably, however, the court must consider all available evidence because the McDonnell Douglas
framework is “merely one way of culling the relevant evidence needed to demonstrate whether a
reasonable factfinder could conclude that an employer engaged in an adverse employment
action” based on a proscribed factor. McDaniel, 940 F.3d at 368 (quoting Johnson v. Advocate
Health & Hosps. Corp., 892 F.3d 887, 894 (7th Cir. 2018)).
Plaintiff invokes the McDonnell Douglas framework in support of his claim of race
discrimination. In its motion for summary judgment, Defendant IDOT argues that Plaintiff was
discharged not on the basis of race but because he violated IDOT’s policies against disruptive
conduct and violence in the workplace. Defendant does not, however, contest that Plaintiff is a
member of a protected class nor that Plaintiff suffered an adverse employment action. The court
therefore turns to whether Plaintiff was meeting the IDOT’s legitimate job expectations and
whether Plaintiff was treated less favorably than similarly-situated employees.
A.
IDOT’s Legitimate Job Expectations
The inquiry regarding whether an employee was meeting his employer’s legitimate
expectations focuses on the “employee’s performance at the time of his dismissal.” Anders v.
Waste Mgmt. of Wisconsin, 463 F.3d 670, 676 (7th Cir. 2006). This inquiry has less to do with
“credentials, work experience, and previous positive job evaluations” than with the employee’s
“performance at the crucial time when the employment action is taken.” Dear v. Shinseki, 578
F.3d 605, 610 (7th Cir. 2009); see also Peters v. Renaissance Hotel Operating Co., 307 F.3d 535,
545–46 (7th Cir. 2002) (affirming summary judgment for an employer when the plaintiff employee,
although previously having received satisfactory performance evaluations and an employee
award, failed to heed his employer’s warnings about properly documenting his activity and used
employer equipment without permission prior to his termination). “An employee who violates his
employer’s established policies fails to perform adequately or meet his employer’s legitimate
expectations.” Hall v. Vill. of Flossmoor Police Dep’t, No. 11 C 5283, 2012 WL 6021659, at *5
10
(N.D. Ill. Dec. 4, 2012) (citing Anders, 463 F.3d at 676 (“It cannot be disputed that [plaintiff’s]
behavior on November 12 failed to meet [defendant’s] ‘legitimate expectations’ as established by
its Code of Conduct and Workplace Violence policy.”)).
Defendant argues that Plaintiff did not meet IDOT’s legitimate expectations because he
violated its policies prohibiting disruptive conduct and violence in the workplace. Defendant does
not contend that Plaintiff’s job performance was otherwise unsatisfactory. Plaintiff admits that he
pushed Monroe during the July 8, 2016 altercation (Def.’s SOF ¶ 30; Pl.’s SOF ¶ 9), and does not
dispute that physical altercations in the workplace violate Defendant IDOT’s Personnel Policies
related to disruptive conduct and violence in the workplace. (See Personnel Policies Chs. 10-3,
12-1, 12-3.) Rather, Plaintiff urges that he acted in self-defense. (Pl.’s Resp. to Def.’s SOF ¶ 30.)
The court will assume, as Plaintiff contends, that he was acting in self-defense, but notes that
IDOT policies do not differentiate between violence used in self-defense and violence initiated by
the employee—all violence is prohibited. (See Personnel Policies Ch. 12; see also Sawyer v.
Columbia College, 864 F. Supp. 2d 709 (N.D. Ill. 2012) (“[W]hether one was the aggressor, by
words or actions, is of no moment.”).) The record shows that, at the time of his discharge, Plaintiff
violated multiple IDOT policies by arguing with and pushing his subordinate. See Hall, 2012 WL
6021659, at *5; see also Sawyer, 864 F. Supp. 2d at 718 (“Even when taken in the light most
favorable to Plaintiff, Plaintiff’s involvement in a workplace altercation gave the College a sufficient
reason to believe he was not meeting reasonable expectations.”); Van Dusen v. Mem’l Hosp. of
S. Bend, Inc., No. 3:10-CV-255 CAN, 2011 WL 5507109, at *4 (N.D. Ind. Nov. 9, 2011)
(concluding that an employee, who admitted to “assault[ing] a coworker in violation of [his
employer’s] workplace violence policy,” was not meeting his employer’s legitimate expectations);
Anders, 463 F.3d at 676 (finding that an employee who walked off the job and then attempted to
attack his supervisor violated his employer’s code of conduct and workplace violence policy,
which meant he did not meet his employer’s “legitimate expectations”).
11
Ultimately, however, in a situation in which there is a specific disciplinary infraction leading
to discharge, the central question is the fairness of Defendant’s response. When, as here, the
Plaintiff contends that his employer applied its expectations in a discriminatory manner (see Pl.’s
Resp. to Def.’s Mot. for Summ. J. (“Pl.’s MSJ Resp.”) [65] at 6), the second and fourth elements
of the McDonnell Douglas framework merge, and the court considers whether the “evidence
would establish that the defendant[ ] extended leniency to similarly situated white employees who
engaged in similar conduct.” Rodgers v. White, 657 F.3d 511, 517 (7th Cir. 2012) (“When a black
employee produces evidence that he was disciplined more severely than white employees who
shared similar shortcomings, the second and fourth elements of the [McDonnell Douglas analysis]
merge.”); see also Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002) (“When a
plaintiff produces evidence sufficient to raise an inference that an employer applied its legitimate
employment expectations in a disparate manner, . . . the second and fourth prongs of McDonnell
Douglas merge.”).
B.
Similarly Situated Employees
A jury can reasonably infer discrimination “when an employer treats an employee in a
protected class less favorably than it treats a similarly-situated employee outside that class.” de
Lima Silva v. Dep’t of Corr., 917 F.3d 546, 559 (7th Cir. 2019) (citing Coleman v. Donahoe, 667
F.3d 835, 846 (7th Cir. 2012)). Another employee is similarly situated to the plaintiff if it is possible
to eliminate other potentially “explanatory variables, ‘such as differing roles, performance
histories, or decision-making personnel.’” McDaniel, 940 F.3d at 368 (quoting Coleman, 667 F.3d
at 846). To be similarly situated, other employees “need not be identical in every conceivable
way,” but they “must be ‘directly comparable’ to the plaintiff ‘in all material respects.’” Id. In cases
in which the plaintiff “alleges the employer disciplined him more harshly than his comparator, ‘the
most relevant similarities are those between the employees’ alleged misconduct, performance
standards, and disciplining supervisor, rather than job descriptions and duties.” de Lima Silva,
917 F.3d at 559 (quoting Coleman, 667 F.3d at 849).
12
1.
Evidentiary Issues with Plaintiff’s Proposed Comparators
The court addresses, as an initial matter, evidentiary issues that surround certain episodes
Plaintiff has identified as comparable to the one resulting in his discharge (involving J.M., M.J.,
Z.M., and one incident involving A.D.). See Victor v. ELA Area Pub. Library Dist., No. 17 CV
7172, 2019 WL 3252232, at *9 (N.D. Ill. July 19, 2019) (quoting Gunville v. Walker, 583 F.3d 979,
985 (7th Cir. 2009) (“A party may not rely upon inadmissible hearsay to oppose a motion for
summary judgment.”)). Plaintiff claims that J.M., a white highway maintenance driver, punched a
motorist and was given only an oral reprimand. (Pl.’s SOF ¶ 29.) Plaintiff offers no admissible
evidence to support this allegation, instead offering the testimony of M.H., an IDOT lead-lead
worker who retired in 2014, from a public hearing before the Illinois Human Rights Commission
(“IHRC”) in 2018 6 in which M.H. described what he learned about J.M.’s conduct from an email
he received while working for IDOT. (M.H. Test. at 102–03, Ex. 6 to Pl.’s SOF.) Plaintiff claims,
also based on M.H.’s testimony, that A.D. pushed a co-worker, T.S., against a wall, cursed at
T.S., and threatened to “kick [T.S.’s] ass” without being disciplined. (See Pl.’s SOF ¶ 30 (citing
M.H. Test. at 97–100).) M.H. was not an IDOT employee when he gave this testimony, and the
court assumes he could have given a deposition in this case; but it does not establish disparate
treatment in any event because Harrison acknowledged that he himself did not report the incident,
nor did the victim. (See M.H. Test. 98:22–23, 99:5–8.)
Plaintiff also proposes M.J. and Z.M., two white lead-lead workers, as comparators; he
asserts that neither man was disciplined after they allegedly engaged in a physical altercation
6
The public hearing was in the case John E. Stewart Jr. v. Illinois Dep’t of Transp.,
Charge No. 2007 CF 2704. The complainant in that case, an African American IDOT employee,
similarly alleged that black IDOT employees were disciplined more severely for violations of the
workplace violence policy than their white counterparts. Plaintiff does not report the outcome of
the proceeding, nor could the court find a public record of the order, but Plaintiff quotes the
Administrative Law Judge as finding that “the black ETP employee was punished more severely
than the white ETP employees who violated the same policy during the same timeframe by
committing more egregious conduct.” (See Pl.’s MSJ Resp. at 13.)
13
sometime after 2014. 7 (Pl.’s SOF ¶ 33.) Plaintiff testified in his deposition that he did not witness
the altercation, but that Z.M. described his fight with M.J. to Plaintiff. (Colbert Dep. 203:1–205:14.)
Neither party offered testimony from Z.M. or M.J. in this case, and Plaintiff has not provided
records documenting the incident or any disciplinary steps that were (or were not) taken. Neither
party commented on Plaintiff’s discovery efforts regarding this incident; it was raised in his
deposition because Plaintiff identified the incident in his interrogatory responses. (Id. 202:7–15.)
Plaintiff testified that Z.M. said that he grabbed M.J. because M.J. “was acting like an ass,” and
Z.M. was apparently “fed up with the way [M.J.] was talking to him and treating him.” (Id. 203:18–
20.) Z.M. told Plaintiff that J.M. “snatched away,” (id. 204:17–20), and “was yelling at Jim McKay
to call the cops.” (Id. at 203:15–22.) Dan Giglio and Jim McKay apparently witnessed the incident,
but there is no admissible evidence that anyone reported, 8 despite IDOT policies requiring
instances of disruptive or violent conduct to be reported up the chain of command (here, likely to
the patrol manager Michael Schivarelli) or to Labor Relations. (See Personnel Policies Chs. 102, 10-3(Q), 12-2(A)–(D).) There were no reported injuries, and no one called the police. (Id.
205:1–11.)
Plaintiff has not produced evidence sufficient for the court to determine that Z.M.’s
statements to him are admissible. See Victor, 2019 WL 3252232, at *10; United States v.
Hawkins, 803 F.3d 900, 902 (7th Cir. 2015) (explaining that the proponent of evidence bears the
burden of showing it is admissible non-hearsay); FED. R. EVID. 801(d)(2)(D). Specifically, it is not
clear that Z.M. was acting within the scope of his employment when he told Plaintiff about the
altercation. Because this admission does not relate directly to Plaintiff’s discipline and discharge,
7
In Plaintiff’s deposition, the date of the incident was said to have been January
2016, but Plaintiff did not testify to the date. (Colbert Dep. 202:20.)
8
Plaintiff cites only to hearsay evidence (M.H.’s IHRC testimony) that the incident
was reported to ETP Management. (See Def.’s Resp. to Pl.’s SOF [77] ¶ 33.) M.H. himself did
not witness the event; he heard about it from a lead worker who also may have heard about it
second-hand. (M.H. Test. 109–11.)
14
the “only requirement” for Z.M.’s statement to be within the scope of his employment with IDOT
“is that the subject matter of the admission match the subject matter of the employee’s job
description.” Aliotta v. Nat’l R.R. Passenger Corp., 315 F.3d 756, 762 (7th Cir. 2003) (“While the
hiring/firing/promoting/demoting decisionmaking authority of the declarant may be critical in
employment cases in which the admission deals with hiring/firing/promoting/demoting-type
decisions, no similar requirement exists in other contexts.”). Here, however, Plaintiff as the
proponent of the evidence has not met his burden of showing that Z.M. told Plaintiff about the
altercation “in furtherance of [his] management duties,” rather than “for personal reasons.” Victor,
2019 WL 3252232, at *10. Accordingly, the court declines to consider J.M., Z.M., M.J., or the
A.D.-T.S. incidents in the comparator analysis.
2.
Conduct of Comparable Seriousness
Plaintiff does identify several other potential comparators who, he claims, were treated
more favorably than he was after violating IDOT’s workplace violence policy. 9 Whether another
employee is similarly situated depends on whether the proposed comparator engaged in conduct
of “comparable seriousness.” de Lima Silva, 917 F.3d at 559. A court must consider whether the
conduct “violates the same rule or is of a similar nature,” id., and any “differentiating or mitigating
circumstances.” McDaniel, 940 F.3d at 369 (quoting Coleman, 667 F.3d at 847); see also
Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 365–66 (7th Cir. 2009).
9
Defendant also identifies potential comparators beyond those discussed by
Plaintiff in his Local Rule 56.1 Statement of Facts or his reply memorandum. Because Plaintiff
does not rely on those individuals as potential comparators, the court will not discuss them here.
The parties briefly discuss F.G., a white Highway Maintainer who allegedly “exchang[ed] words
with a coworker, shov[ed] a table into that coworker, and [got] into that coworker’s face,” and was
subsequently discharged. (Def.’s MSJ at 10; Pl.’s MSJ Resp. at 14.) In its brief, Defendant cites
¶ 82 of its Local Rule 56.1 Statement of Facts to support the allegations against F.G., but there
is no ¶ 82 in that statement. See Boyce v. Obaisi, No. 13 C 5746, 2015 WL 5462137, at *2 (N.D.
Ill. Sept. 16, 2015 (“[F]acts asserted in a brief but not presented in a Local Rule 56.1 statement
are disregarded in resolving a summary judgment motion.”). Plaintiff’s Local Rule 56.1 Statement
of Additional Facts adds no information about F.G., so the court will not further discuss the details
of that incident.
15
Whether Plaintiff and his proposed comparators violated the “same set of rules is not
dispositive,” de Lima Silva, 917 F.3d at 560, because a variety of conduct violates IDOT’s
workplace violence policy, including physical assault, threats, intimidation, and harassment. (See
Personnel Policies Ch. 12-3.) Company discipline rules, while “helpful” to a court comparing
different disciplinary sanctions imposed on employees, “are not conclusive indicators of
comparable seriousness.” Johnson v. Artim Transp. Sys., Inc., 826 F.2d 538, 543 (7th Cir. 1987).
Some of the employees that Plaintiff identifies as comparators verbally threatened coworkers or
members of the public rather than engaging in physical altercations. Courts in this Circuit have
concluded that physical violence is more serious than threats of violence. See, e.g., Coleman,
667 F.3d at 851 n.3 (citing a Tenth Circuit case finding physical violence to be more serious than
verbal threats when explaining that the plaintiff’s “alarming statements to a third-party” were
“arguably” less serious than her proposed comparator’s acts of threatening another employee
with a knife while holding that employee to the floor); Nichols v. Illinois Dep’t of Transp., 152 F.
Supp. 3d 1106, 1135 (N.D. Ill. 2016) (“It goes without saying that actual violence is much more
serious and explicit than threats of violence.”). Plaintiff’s conduct was quite serious—as a result
of the physical altercation with Monroe, police reports were filed, and Monroe was taken by
ambulance to the emergency room to address his injuries. (Def.’s SOF ¶ 41.) And while Plaintiff
claims that the severity of his conduct is mitigated by the fact that he had the right to defend
himself (Pl.’s SOF ¶¶ 12, 38), a physical altercation resulting in injuries that required urgent
medical attention is more serious than a threat of violence.
Because actual, physical violence is more serious than a threat, the court finds that W.M.,
a white employee who called his supervisor a racial slur and threatened to “kick” his supervisor’s
“ass,” but who was not physically violent, is not similarly situated to Plaintiff. 10 (Pl.’s MSJ Resp.
10
W.M. was also allegedly suspended for one day after telling his subordinate that
“the last guy to call a Mother Fucker ended up in the hospital.” (Pl.’s SOF ¶ 25.) The other
allegations against W.M. do not involve threats or workplace violence. (Id. ¶ 26.)
16
at 9–10; Pl.’s Resp. to Def.’s SOF ¶ 70.) Nor is M.M., another white employee who threatened to
“kick” the same supervisor’s “ass” without becoming physically violent, a comparator. (Pl.’s MSJ
Resp. at 10.) A.A. also threatened his coworkers and was not terminated, but was not physically
violent. 11 (Pl.’s Resp. to Def.’s SOF ¶ 76.)
The remainder of Plaintiff’s proposed comparators—R.D., J.P., A.D., and T.B.—did
allegedly commit acts of physical violence in the workplace. First, Plaintiff contends that two white
employees, R.D. and J.P., were not discharged or disciplined after a 2004 altercation during which
Donovan allegedly “threatened [J.P.] and his family, grabbed [J.P.] around the neck, broke [J.P.]’s
gold chain, [and] left [J.P.] with bloody scratches on his neck.” (Pl.’s MSJ Resp. at 9; Pl.’s SOF
¶ 22.) Plaintiff testified that R.D. struck or grabbed J.P. “by his collar and his chain,” and
threatened to kill J.P. (Colbert Dep. 197:10–16, 200:5–14.) Plaintiff testified that he observed
the incident (id. 197:15–16), but a document Plaintiff wrote at the time of the event, 14 years
earlier, reported that he was in the break room when R.D. grabbed J.P. in an office around the
corner. (Id. 198:17–22, 199:2–5; Ex. 10 to Pl.’s SOF.) Plaintiff cites two memoranda, written on
June 13, 2004 when the altercation occurred (see Pl.’s SOF ¶ 22), reporting the incident to William
Helm, then the patrol manager, but they describe threats rather than a physical assault. (Exs. 10,
11 to Pl.’s SOF.) Plaintiff did, however, testify that he saw scratches on J.P.’s neck. (Colbert
Dep. 200:17–18.) Whether Plaintiff can testify from personal knowledge about physical violence
between R.D. and J.P. depends on a credibility determination that is not appropriately made at
the summary judgment stage.
Second, Plaintiff cites an incident from 2006 in which A.D. allegedly “threw a live flare into
a motorist’s vehicle.” (Pl.’s SOF ¶ 30.) In support, Plaintiff cites IDOT’s “Yard Report” (disciplinary
record) which states: “Profanity toward motorist/Waved lit flare/Damage to interior of car & burn
11
IDOT disciplinary records show that in 2011, A.A. was suspended pending
discharge after threatening to kill a co-worker and his father, but that the suspension was reduced
to 10 days. (Ex. 13 to Pl.’s SOF at 36.)
17
injuries to the occupants.” (Ex. 13 to Pl.’s SOF at 60.) A.D. was charged with the following:
“Misconduct – Conduct Unbecoming State Employee,” “Misconduct – Creating A Negative Public
Image,” and “Poor Work Performance – Endangering The Motoring Public.” (Id.) As a result, he
was suspended for 15 days. (Id.) Mr. Varlotta acknowledged this record in his deposition, but
noted that DeVita’s personnel file did not corroborate that the vehicle’s occupants were burned.
(Varlotta Dep. 75:24–76:22.) Third, T.B., a white employee, allegedly engaged in violence in the
workplace and was suspended for 29 days in 2007. (Pl.’s SOF ¶ 20.) IDOT disciplinary records
show that he was charged with “Violence in Workplace – Threat(s): Co-Worker(s),” and “Violence
in Workplace – Physical Assault: Co-Worker” after “[h]orseplay escalated (forced co-worker to
knee/caused head to strike door),” and R.B. allegedly warned a co-worker that “I’ll squeeze you
– your head will pop off.” (Ex. 13 to Pl.’s SOF at 6.) T.B.’s co-worker, another highway maintainer,
was suspended for three days due to the incident. (Id. at 5.)
Defendant argues that the incident involving Plaintiff was more severe than the incidents
involving R.D., J.P., A.D., and T.B. because Monroe went to the emergency room and the police
were involved, unlike in the other cases. 12 It is true that none of the alleged incidents involving
Plaintiff’s proposed comparators resulted in an emergency room visit, but they did result in
physical harm. 13 In any case, “[a] characteristic that distinguishes two employees, regardless of
its significance when objectively considered, does not render the employees non-comparable if
the employer never considered that characteristic.” Eaton v. Indiana Dep’t of Corr., 657 F.3d 551,
12
Plaintiff cites the deposition of Michael Varlotta to suggest that IDOT has admitted
that that Plaintiff’s conduct was less serious than R.D.’s. (See Pl.’s SOF ¶ 23.) While Mr. Varlotta,
as the current Labor Relations Director, is authorized to recommend that employees be
discharged (Varlotta Dep. 14:1–15), Mr. Varlotta has been in this role only since 2017, and played
no part in the decision to terminate Plaintiff or the decision to retain R.D. and J.P.
13
For this reason, the incident between M.J. and Z.M. may not be of comparable
seriousness to the incident between Plaintiff and Monroe, and so they may not be appropriate
comparators even were the evidence supporting the incident admissible. The M.J.-Z.M.
altercation seems to violate the same workplace violence rule as Plaintiff’s conduct, but neither
M.J. nor Z.M. was injured after Z.M. grabbed M.J. (Colbert Dep. 205:1–11.)
18
559 (7th Cir. 2011). Whether an instance of workplace violence results in injuries seems to matter
for purposes of IDOT policy, which distinguishes between physical assault—“[a]cts resulting in
intentional physical harm or injury”—and threats, intimidation, or harassment, which do not involve
physical harm or injury. (See Personnel Policies Ch. 12-3(A).) But no manager involved in
Plaintiff’s disciplinary process testified in this case, and there is no evidence suggesting that
Monroe’s injuries or the police involvement were considered in the decision to discharge Plaintiff.
Additionally, the document informing Plaintiff of the charges against him does cite specifically to
the portion of the workplace violence policy defining physical assault, but does not mention
Monroe’s hospitalization or the police report. (See Ex. M to Def.’s SOF.)
Defendant also argues that the flare incident involving A.D. is not comparable because he
was not charged with violence in the workplace. But the nature of the misconduct is just as
important as the rule it allegedly violates. de Lima Silva, 917 F.3d at 560. Viewing the evidence
in the light most favorable to Plaintiff, a reasonable jury could find that burning a motorist with a
lit flare is just as serious as a supervisor pushing and injuring a subordinate. In sum, a reasonable
jury could find the incidents involving R.D., J.P., A.D., and T.B. to be of comparable seriousness.
3.
Same Standards of Conduct
Defendant IDOT further contends that R.D., J.P., A.D., and T.B. are not similarly situated
to Plaintiff, first, because Plaintiff’s conduct involved physical violence between a supervisor and
supervisee, and second, because the conduct of Plaintiff’s proposed comparators occurred
several years ago. The Seventh Circuit has cautioned that “[f]ormal job titles and ranks are not
dispositive,” and that “an employer cannot insulate itself from claims of racial discrimination by
making formalistic distinctions between employees.” Rodgers, 657 F.3d at 518. “A proposed
comparator’s position or rank may be important, but only provided that the employer took these
factors into account when making the personnel decision in question.” Coleman, 667 F.3d at
849–50. Here, the workplace violence policy appears to grant Labor Relations discretion in
determining the appropriate response to reports of violence. The response “will be in direct
19
correlation to the severity of the incident,” but the policy does not specify which factors increase
the severity of an incident. (Personnel Policies Ch. 12-2.)
Defendant seems to argue either that violence between a supervisor and supervisee is
more serious than violence between two employees of equal rank, or that Plaintiff should be
judged more strictly because he was a supervisor.
A reasonable jury could accept both
arguments—they make intuitive sense—but Defendant has not offered any evidence that a
manager relied on these distinctions when making the discharge decision in this case. The
document informing Plaintiff of the charges against him does note that the altercation involved his
subordinate, but it does not indicate that the difference in roles affected the charges against
Plaintiff or would be a factor relevant to his discipline. (See Ex. M to Def.’s SOF.) Moreover,
Plaintiff points out that IDOT’s Personnel Policies apply equally to all IDOT employees and do not
mention supervisory status as a factor to consider in assessing the severity of an incident or the
discipline that is warranted. (Pl.’s MSJ Resp. at 14; see also Coleman, 667 F.3d at 849 (“[Plaintiff]
and her comparators were disciplined not for bad performance but for violating a general
workplace rule that applied to employees in all departments and of all ranks. In such misconduct
cases (as opposed to performance cases), comparisons between employees with different
positions are more likely to be useful.”).) Without information to suggest that supervisors are held
to a different standard of conduct than non-supervisory workers, or that IDOT decisionmakers
consider incidents of workplace violence between a supervisor and supervisee to be more serious
than violence between employees of equal rank, the court cannot resolve at the summary
judgment stage whether Plaintiff’s status as a lead worker means that his conduct should be
treated differently than that of his proposed comparators, or that his altercation should be
considered more serious.
Defendant IDOT also urges that the altercations involving R.D., J.P., A.D., and T.B. are
“completely outside the relevant timeframe” because they occurred too long ago—between 2004
and 2007. (Def.’s Reply. at 2.) Defendant does not identify what it considers to be the relevant
20
time frame, but seems to argue that, as a categorical matter, a “temporal gap of this magnitude
is insufficient to support a claim that similarly situated employees were treated better.” (Id. at 7.)
Neither the cases that Defendant cites, nor any authority the court could uncover, support such a
broad rule, however. True, incidents widely separated in time are likely to be less probative,
because a time gap makes it more likely that “the difference in treatment was due to changes in
policies, personnel, and attitudes over the intervening years.” Coleman v. Robert W. Depke
Juvenile Justice Ctr., No. 14 CV 2015, 2018 WL 1468999, at *8 (N.D. Ill. Mar. 26, 2018); see also
Bilow v. Much Shelist Freed Denenberg Ament & Rubenstein, 96 F. Supp. 2d 763, 769 (N.D. Ill.
2000).
Thus in Coleman v. Robert W. Depke Juvenile Justice Center, where plaintiff was
terminated after he was arrested and charged with traffic citations for speeding and illegally
transporting an open container of alcohol, and non-traffic citations for unlawful use of weapons
and possession of cannabis, the court was unmoved by evidence that, nine years earlier, an
employee in similar circumstances had been treated more favorably. 2018 WL 1468999, at *3.
That earlier episode involved a different decision maker, and there was no evidence that the
defendant’s policy with respect to employee arrests for drug or alcohol offenses remained the
same over time. Robert W. Depke, 2018 WL 1468999, at *8. In Quick, the court found that the
proposed employees from “years before” were not comparable because they were Spanishspeaking and hired at a time when the department “had a pressing need for Spanish-speaking
officers,” and before the department “began leaning away from accepting laterals due to bad
experiences.” Quick v. City of Fort Wayne, No. 15 CV 56, 2016 WL 5394457, at *5 (N.D. Ind.
Sept. 27, 2016).
In this case, Defendant IDOT provides no explanation aside from the above-mentioned
citations to support its argument that Plaintiff’s older proposed comparators are immaterial.
Defendant notes that Plaintiff presents no evidence that the workplace violence policy has
remained the same over time (see Def.’s Reply at 10), but the court presumes that Defendant
would have more direct access to information about any relevant change in enforcement policy,
21
but has not presented such evidence. At this stage, the court accepts the cases of R.D., J.P.,
A.D., and T.B. as appropriate comparators, and considers the relevance of the fact that different
decisionmakers may have been involved in the decisions concerning their discipline.
4.
Same Decisionmaker
Normally, employees must share a common supervisor to be similarly situated. Coleman,
667 F.3d at 847. This need not be a common direct supervisor, but the individual responsible for
making the disciplinary decision should be the same for any comparison to be meaningful. “When
the same supervisor treats an otherwise equivalent employee better, one can often reasonably
infer than an unlawful animus was at play.”
Id.
On the other hand, if there are different
decisionmakers, the inference of discrimination is weaker because decisionmakers “may rely on
different factors when deciding whether, and how severely, to discipline an employee.” Id.; see
also Little v. Illinois Dep’t of Revenue, 369 F.3d 1007, 1012 (7th Cir. 2004) (explaining that
discipline from a different supervisor “sheds no light” on the disciplinary decision). “Whether a
comparator is similarly situated is typically a question for the fact finder, unless, of course, the
plaintiff has no evidence from which a reasonable fact finder could conclude that the plaintiff has
met his burden on this issue.” Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 895
(7th Cir. 2018).
Plaintiff urges that the identity of the individual decisionmaker for each of his proposed
comparators is irrelevant because IDOT is required to administer discipline in a nondiscriminatory
manner regardless of who makes the disciplinary decision. (Pl.’s MSJ Resp. at 12.) Unbiased
enforcement of IDOT policies is undoubtedly required, but discrimination is not the only variable
that could account for differences in treatment. That is, different supervisors could reasonably
come to different conclusions about the severity of an incident or the warranted punishment for
reasons other than discriminatory animus. The IDOT workplace violence policy provides no
definite guidelines to curb the exercise of discretion in assessing the severity of an incident or the
proportionate response. See Coleman, 667 F.3d at 847 (explaining that decisionmakers “may
22
rely on different factors when deciding whether, and how severely, to discipline an employee”).
And while discretion could enable a decisionmaker to mask discrimination, it does not make
discrimination inevitable.
Neither Plaintiff nor Defendant has identified the individual or individuals who made the
decision to terminate Plaintiff’s employment, nor any potential decisionmakers within IDOT or
CMS who were involved with the disciplinary decisions affecting the others. 14 While Plaintiff bears
the initial burden of establishing that “similarly situated employees outside of [his] protected class
were treated more favorably by the employer,” David, 846 F.3d at 225, without clearer evidence
of who was involved in disciplining Plaintiff and his proposed comparators, the court cannot decide
in favor of either party on the question of whether Plaintiff’s proposed comparators were truly
similarly situated. The August 2016 letter informing Plaintiff that he had been discharged was
signed by Georgina Syas, the Personnel Manager, on behalf of John Fortmann, the Deputy
Director of Highways for Region One. (Pl.’s Resp. to Def.’s SOF ¶ 62.) The court might surmise
that John Fortmann bears the ultimate responsibility for the decision to terminate Plaintiff, but
Defendant has not identified, nor does the record otherwise indicate with certainty, who proposed
the discharge. See Coleman, 667 F.3d at 848 (explaining that “the issue is not only who proposed
the suspension but who was ‘responsible’ for the decision,” which can be evidenced by signing
off on the decision of another). Moreover, there is no evidence in the record regarding the length
of Fortmann’s tenure—that is, it is not clear if he was involved with, or responsible for, making the
decisions to retain Plaintiff’s proposed comparators.
Additionally, in his deposition, Varlotta stated that the Labor Relations Director decides
whether discharge is appropriate and then recommends discharge to CMS, which then authorizes
the discharge. (Varlotta Dep. 13:13–14:9.) Varlotta testified that Jane Ryan was the Labor
14
Plaintiff notes that Jim McKay decided whether to report incidents of workplace
violence, at least for incidents involving employees at the ETP yard where Plaintiff worked, but
does not dispute that McKay was not the final decisionmaker regarding whether to discharge
employees. (Pl.’s Resp. to Def.’s SOF ¶ 63.)
23
Relations Director at the time of Plaintiff’s dismissal. (Id. 31:8.) Based on Varlotta’s testimony,
there is reason to suspect that the individual who made the recommendation to retain R.D., J.P.,
A.D., and T.B. was not the same person who decided to discharge Plaintiff. Varlotta testified that
Colleen Alderman was the Labor Relations Director from the mid- to late-1990s to “probably”
around 2008, and after her John Czurnycz, Devra Muench, Kevin Tirey, Jane Ryan, and Rodney
Masterson (“somewhere in that timeframe”) were subsequent Labor Relations Directors. (Id.
94:25–95:23.) But the Labor Relations Director is not, as far as the record shows, the only
individual who provides input on disciplinary decisions.
“The point of determining whether different decision makers were responsible is to
determine whether two employees were held to different standards by virtue of the different
perspectives and expectations of different and independent decision makers.”
Perez v.
Thorntons, Inc., 731 F.3d 699, 707 (7th Cir. 2013). In cases, as here, where multiple individuals
were involved in the decision-making process for employee discipline, and the employees are
subject to the same standards (here, the workplace violence policy), “an employer cannot defeat
[an] inference of impermissible disparate treatment by designating one supervisor as the nominal
decision maker for one decision and [an]other supervisor as the nominal decision maker for the
other.” Id. at 708. Due to the lack of clarity in the record, the court finds that there is a genuine
issue of material fact regarding whether Plaintiff was disciplined by the same decisionmakers as
his proposed comparators, and therefore whether he is similarly situated to employees that were
treated more favorably.
III.
Pretext and Other Evidence of Discriminatory Treatment
Defendant’s proposed nondiscriminatory reason for discharging Plaintiff is his violation of
IDOT policies against workplace violence. (Def.’s MSJ at 14.) Plaintiff urges that this justification
is pretextual based on the comparator evidence discussed above. 15
15
To establish that an
Plaintiff also claims that McHugh called him a racial slur (Colbert Dep. 65:22–67:9),
and that M.B., an ETP worker, once used racially-charged language to describe Plaintiff. (Id.
24
employer’s proffered reason for the termination is pretextual, a plaintiff must show that the
employer did not “honestly believe[ ] the reasons it has offered to explain the discharge.”
Coleman, 667 F.3d 835. The court’s concern is not that the “employer’s reason was inaccurate
or unfair,” or that “an employer may be wrong about its employee’s performance,” rather, the
question is whether the employer’s proffered reason “was a lie.” Id. The plaintiff must “identify
such weaknesses, implausibilities, inconsistencies, or contradictions in [his employer’s] asserted
reason that a reasonable person could find it unworthy of credence.” Id. (quotation omitted).
Especially when a plaintiff argues “that an employer’s discipline is meted out in an uneven
manner, the similarly-situated inquiry dovetails with the pretext question,” and a “showing that
similarly situated employees belonging to a different racial group received more favorable
treatment can also serve as evidence that the employer’s proffered legitimate, nondiscriminatory
reason for the adverse job action was a pretext for racial discrimination.” Coleman, 667 F.3d at
858 (quotations omitted). As explained above, Plaintiff has raised a genuine issue of material fact
regarding whether he is similarly situated to white employees who engaged in conduct that
violated IDOT’s workplace violence policy and were punished less harshly.
As Plaintiff sees things, Defendant IDOT claims to have a “zero tolerance” workplace
violence policy requiring dismissal of any employee who violates the policy, but in practice, only
African American IDOT employees are dismissed for policy violations. (Pl.’s MSJ Resp. at 13.)
Defendant disputes such a strict interpretation of its policies, and Plaintiff admits that IDOT
Personnel Policies do not include the words “zero tolerance.” (Pl.’s Resp. to Def.’s SOF ¶ 64.)
Indeed, the policies state that violators of the workplace violence rules “may be removed from the
premises and may be subject to disciplinary action up to and including discharge, criminal
7:10–15.) As far as the record shows, however, M.B. was not involved at all in Plaintiff’s dismissal
and the extent of McHugh’s involvement was to call Plaintiff to tell him not to come to work on the
day after the altercation with Monroe. See Williams v. Seniff, 342 F.3d 774, 790 (7th Cir. 2003)
(explaining that, unless an individual was involved in the decision-making process or provided
input into a disciplinary decision, that individual’s expression of discriminatory feelings is not
evidence that the decision was discriminatory).
25
penalties, or both.” (Personnel Policies Ch. 12-1(C) (emphasis added).) The use of “may,” rather
than a word connoting mandatory discipline, suggests flexibility in enforcement. Moreover, the
policy states that the “department’s level of response [to a reported incident] will be in direct
correlation to the severity of the incident,” indicating that discharge is not the automatic
disciplinary response to allegations of violence in the workplace. (Id. Ch. 12-2(C).)
The testimony of IDOT employees, however, is less definitive. Michael Varlotta, Giovanni
Fulgenzi, Georgina Syas, James McKay, and a few other employees have testified in other cases
and described their understandings of IDOT’s workplace violence policy. Of these, only Georgina
Syas and James McKay were involved in the process leading to Plaintiff’s eventual dismissal.
Georgina Syas, the IDOT Personnel Manager from roughly 2012 to 2016, testified at the 2018
IHRC hearing that if someone violates the workplace violence policy by engaging in behavior or
language “that could be violent, aggressive, threatening,” “[t]hey are usually discharged.” (Ex. 7
to Pl.’s SOF at 23.) James McKay, who also testified at the 2018 IHRC hearing, understood the
workplace violence policy to be zero-tolerance, meaning that anyone who violates it “will be
discharged.” (Ex. 6 to Pl.’s SOF at 149; see also Ex. 7 to Pl.’s SOF at 7 (“[I]t’s a zero-tolerance
policy meaning that once they go through the investigations and the discipline it’s generally going
to be a 30-day pending discharge.”).) McKay is a supervisor who has no authority to discipline
employees, but nonetheless was involved in the process that led to Plaintiff’s discharge because
he reported the incident.
IDOT employees who were not involved in the decision to discipline Plaintiff also
understood the workplace violence policy as one of zero tolerance. Mr. Varlotta testified that “[he]
was told workplace violence, zero tolerance,” and that a violation “should” result in IDOT seeking
termination, but that he could only “speak to what they’re doing in 2017,” not “what they were
doing in 2007.” (Varlotta Dep. 46:16–47:6; see also Ex. 6 to Pl.’s SOF at 193 (“Violence in the
workplace is considered a zero tolerance citation so it would be something that we would attempt
to discharge on.”).) Plaintiff also offers the 2013 deposition testimony of Giovanni Fulgenzi from
26
Nichols v. Illinois Department of Transportation, in which Fulgenzi said that “violence or threat of
violence is an automatic discharge,” but that in some cases a discharge decision may be
“downgraded and remedial action like [ ] anger management” would be recommended instead.
(Fulgenzi Dep. 57:8–20, Ex. 8 to Pl.’s SOF.) Fulgenzi was the IDOT Personnel Manager from
1998 until 2012 and then was promoted to Bureau Chief of Fiscal Integrity and Investigations with
the Office of Quality Compliance and Review. 16 (Id. 18:17–23.)
Viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could find
that IDOT’s workplace violence policy was applied to Plaintiff in a discriminatory manner
regardless of whether it is “zero tolerance.” If the policy is flexible, allowing decisionmakers
discretion to decide the appropriate disciplinary response introduces the possibility that
discrimination could motivate these decisions, see Nichols, 152 F. Supp. 3d at 1137, and
underscores the need for Defendant in this case to identify the decisionmakers and present their
explanation why discharging Plaintiff in these circumstances was appropriate. A flexible policy
could also show that Plaintiff was entitled to leniency because he was not the initial aggressor in
the altercation with Monroe, and Mr. Varlotta’s testimony suggests that whether an employee was
acting in self-defense is at least potentially relevant to a disciplinary decision. 17 See Coleman,
16
Former IDOT employees John E. Stewart, Marvin Harrison, and Lloyd Hinton also
testified at the 2018 IHRC hearing that they understood the workplace violence policy to be “zero
tolerance.” (See Ex. 5 to Pl.’s SOF at 54; Ex. 6 to Pl.’s SOF at 60.) For example, Hinton stated
that he understood the zero-tolerance policy to mean that “you can be terminated for verbal,
physical, and antagonistic practices,” and that “you would be dismissed if you violated it.” (Id. at
14, 30–31.) These men were not involved in the decision to discharge Plaintiff, and only Marvin
Harrison worked in a supervisory capacity.
17
Plaintiff cites to the deposition testimony of Michael Varlotta to suggest that IDOT
has admitted that his conduct during the July 8 incident was justified and that he attempted to
defuse the situation. (Pl.’s SOF ¶¶ 11–12.) Specifically, Mr. Varlotta stated the following: “Mr.
Wilcox stated that although it didn’t appear in the witness statements, he had reason to believe
from talking to his guys that Mr. Colbert attempted to defuse the situation by putting his hands up
and, while he may have chest bumped, was not the aggressor in the situation.” (Varlotta Dep.
22:6–11.) Statements from Mr. Wilcox and “his guys” are not in the record, however; and while
Mr. Varlotta testified that IDOT employees have no duty to run away if attacked, and may defend
themselves (Varlotta Dep. 100:23–101:7), he also noted that Plaintiff may have actually escalated
27
667 F.3d at 855 (“[T]here is an inherent ‘fishiness’ in an employer’s proffered reason when it rests
on a policy that does not legitimately apply to the employee who was terminated.”).
If IDOT does have a strict zero-tolerance workplace violence policy, a jury could infer
discriminatory intent from the fact that not every violation of the policy results in a discharge.
Nichols, 152 F. Supp. 3d at 1137 (“[D]isparate application of the employer’s ‘no tolerance policy’
is evidence of pretext.”). Plaintiff and Monroe, both African American men, were terminated after
their physical altercation, but R.D., J.P., A.D., and T.B. 18 were not, and in some cases were not
even charged with misconduct.
Plaintiff also directs the court to Defendant’s interrogatory
response stating that only four individuals working at the ETP yard at 35th Street and Normal
Avenue in Chicago have been terminated since 2004 for workplace violence, and all of those
individuals were African American. 19 (See Ex. 12 to Pl.’s SOF ¶¶ 11–12.) The ETP yard may not
be the relevant area for this comparison; there is evidence that disciplinary decisions for
employees at all yards were made centrally by some combination of Personnel Services, Labor
Relations, and CMS. (See Ex. 13 to Pl.’s SOF.) On the other hand, managers from each yard
are responsible for reporting misconduct up the chain of command, and could discipline
employees differently. If the analysis is confined to the ETP yard, the court notes that T.B., one
of Plaintiff’s proposed comparators, should not be considered because he was based out of the
Grayslake yard. The time period of 2004 to the present may also not be the most relevant time
the conflict—“he did not have to respond with the chest bumps or engage in the wrestling
regardless of how it happened.” (Id. 100:7–10.)
18
As discussed below, T.B. may have been discharged and reinstated as a result of
a Last Chance Agreement.
19
The court’s own review of IDOT’s disciplinary records reveals, however, that one
white employee based out of the New Lenox yard was discharged in 2007 for a physical
altercation with a co-worker, and three white IDOT workers from the Grayslake, Maintenance,
and Oak Brook yards were discharged between 2008 and 2011 for making threats. (Ex. 13 to
Pl.’s SOF at 1, 16, 33, 38.) IDOT’s disciplinary records further show that one African-American
employee from the Harvey yard was discharged and reinstated after a physical altercation with a
co-worker, and an African-American employee from the Northside yard was suspended, but not
discharged, after threatening a co-worker. (Id. at 31, 56.)
28
period, as there have been changes in at least some of the decision-making personnel during that
time. The court nevertheless concludes there is a genuine issue of fact regarding whether IDOT’s
workplace violence policy was evenly applied.
In sum, the workplace violence policy that is understood by some IDOT supervisors to be
“zero tolerance” does not result in the discharge of all employees who violate it, and Plaintiff may
have been entitled to leniency if the policy is not, in fact, one of zero tolerance. Moreover, IDOT’s
own Affirmative Action Plans report that African American males are suspended at higher rates
than their representation in the workforce. (See Exs. 3, 4 to Pl.’s SOF.) Such evidence may not
ultimately show that Plaintiff himself was discriminated against, but the context in which an
employee was disciplined can be relevant. See Ford v. Marion Cty. Sheriff’s Office, 942 F.3d
839, 858 (7th Cir. 2019) (“An employer’s general policy and practice with respect to minority
employment can be relevant evidence of pretext or discrimination . . . . Yet such evidence must
undercut the specific justifications given by the employer. General allegations of an ‘ongoing
history of discrimination’ are not enough to impugn a particular employment decision.’”) (quoting
Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 739 (7th Cir. 2006)). Ortiz emphasizes that the
“sole question that matters” in assessing a Title VII discrimination claim is whether “a reasonable
juror could conclude that [Plaintiff] would have kept his job if he had a different [race], and
everything else had remained the same.” Ortiz, 834 F.3d at 764. Plaintiff has presented sufficient
evidence to require that a jury answer that question.
Finally, a word about the significance of the Last Chance Agreement: Plaintiff, like his
proposed comparator T.B., was offered reinstatement under such an Agreement and could have
returned to work. IDOT disciplinary records show that T.B. was suspended for 29 days and was
offered a Last Chance Agreement. (See Ex. 13 to Pl.’s SOF at 6.) The parties have not explained
whether T.B. was discharged and reinstated as a result of the Last Chance Agreement or if T.B.’s
suspension was reduced to 29 days as a result of the agreement. Varlotta testified that there
must be a mistake in this record because a 29-day suspension is “not permissible under the
29
contract” and employees are offered Last Chance Agreements only after a proposed discharge.
(Varlotta Dep. 64:1–6.) Aside from defeating Plaintiff’s assertion that no white employees were
discharged for violating IDOT’s workplace violence policy (see Pl.’s MSJ Resp. at 4), T.B.’s Last
Chance Agreement may mean that T.B. was not in fact treated more favorably than Plaintiff. The
Last Chance Agreement is relevant for another reason as well: Plaintiff’s decision to decline
reinstatement may mean that, should he prevail in this case, his back pay award will be limited to
the pay he lost from the date of his suspension without pay until the date he was offered a Last
Chance. Had Plaintiff returned to work when the position was offered to him, there is no reason
to assume that he would have violated the Last Chance Agreement and lost the job again later.
CONCLUSION
Plaintiff Colbert forfeited his retaliation claim against Defendant IDOT and all claims
against McKay as a Defendant. Defendants’ motion for summary judgment [51] is granted as to
these claims (Counts II–IV). But Plaintiff has raised a genuine issue of material fact regarding
whether he is similarly situated to white IDOT employees who were treated more favorably than
him, and whether IDOT’s explanation for his discharge was pretextual. Accordingly, Defendant
IDOT’s motion for summary judgment on Count I (Title VII race discrimination) [51] is denied. The
parties are encouraged to discuss a settlement.
ENTER:
Date: February 27, 2020
___________________________________
REBECCA R. PALLMEYER
United States District Judge
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