Johnson v. Indiana State of et al
Filing
36
OPINION AND ORDER denying 21 Motion for Summary Judgment. Signed by Judge Rudy Lozano on 9/16/11. (ksc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
Terrance J. Johnson,
)
)
Plaintiff,
)
)
vs.
)
)
State of Indiana & Indiana
)
Department of Correction
)
(Miami Correctional Facility) )
)
Defendants.
)
NO. 3:09-CV-385
OPINION & ORDER
This matter is before the Court on the Motion for Summary
Judgment, filed by Defendants on October 8, 2010.
the
reasons
set
forth
below,
Defendants’
(DE #21.)
Motion
for
For
Summary
Judgment is DENIED and Plaintiff’s claims remain pending.
Background
Terrance J. Johnson (“Plaintiff”) alleges in his Complaint
that he was discriminated against on the basis of his race, that he
was subjected to a racially hostile work environment, and that he
was retaliated against in violation of 42 U.S.C. section 1981 and
Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e
et seq.1
(Comp., ¶¶ 3 & 5; DE #1, pp. 1-2.)
and
Indiana
the
Department
of
Correction,
The State of Indiana
Miami
Correctional
Facility (collectively, “Defendants”), filed the instant Motion for
Summary Judgment on October 18, 2010.
a Response on January 3, 2011.
Reply on February 21, 2011.
(DE #21.)
(DE #31.)
(DE #35.)
Plaintiff filed
Defendants filed their
The Motion is now fully
briefed and ripe for adjudication.
DISCUSSION
The standards that generally govern summary judgment motions
are familiar. Pursuant to Rule 56(c) of the Federal Rules of Civil
Procedure, summary judgment is proper only if it is demonstrated
that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
See
Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corporation.
v. Catrett, 477 U.S. 317, 322–23 (1986).
In other words, the
record must reveal that no reasonable jury could find for the
nonmovant.
Karazanos v. Navistar Int’l Transp. Corp., 948 F.2d
332, 335 (7th Cir. 1991).
See also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986).
In deciding a motion for summary
judgment, a court must view all facts in the light most favorable
1
This Court will analyze the claims under the same standard because,
“[a]lthough section 1981 and Title VII differ in the types of discrimination
they proscribe, the methods of proof and elements of the case are essentially
identical.” McGowan v. Deere & Co., 581 F.3d 575, 579 (7th Cir. 2009).
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to the nonmovant.
Anderson, 477 U.S. at 255; Trade Finance
Partners, LLC v. AAR Corp., 573 F.3d 401, 406 (7th Cir. 2009).
The burden is upon the movant to identify those portions of
the “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits,” if any, that the
movant believes demonstrate an absence of a genuine issue of
material fact.
Celotex, 477 U.S. at 323.
Once the movant has met
this burden, the nonmovant may not rest upon mere allegations but
“must set forth specific facts showing that there is a genuine
issue for trial.” Fed. R. Civ. P. 56(e); Stephens v. Erickson, 569
F.3d 779, 786 (7th Cir. 2009); Becker v. Tenenbaum-Hill Assocs.,
Inc., 914 F.2d 107, 110 (7th Cir. 1990). “Whether a fact is
material depends on the substantive law underlying a particular
claim and ‘only disputes over facts that might affect the outcome
of the suit under governing law will properly preclude the entry of
summary judgment.’”
Walter v. Fiorenzo, 840 F.2d 427, 434 (7th
Cir. 1988) (citing Anderson, 477 U.S. at 248).
“[A] party who bears the burden of proof on a particular issue
may not rest on its pleading, but must affirmatively demonstrate,
by specific factual allegations, that there is a genuine issue of
material fact which requires trial.” Beard v. Whitley County REMC,
840 F.2d 405, 410 (7th Cir. 1988) (emphasis in original). See also
Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1391 (7th Cir. 1993).
Therefore, if a party fails to establish the existence of an
-3-
essential element on which the party bears the burden of proof at
trial, summary judgment will be appropriate.2
Facts
Plaintiff, an African American, was employed as a Correctional
Officer by the Indiana Department of Corrections (“IDOC”) at the
Miami Correctional Facility in Bunker Hill, Indiana, from May 7,
2007, until he was officially terminated on March 20, 2008.
(Interrog. No. 2; DE #21-1, p. 4.)
Prior to being officially
terminated, Plaintiff was suspended without pay for thirty days
pending dismissal on February 14, 2008, by Assistant Superintendent
Sally Stevenson.
(Letter from Stevenson; DE #21-9, pp. 1-2 & Aff.
of Pl., ¶ 2; DE #32-1, p. 1.)
While
working
as
a
Correctional
Officer
for
Defendants,
Plaintiff was a member of the prison’s Emergency Response Team (“ESquad”) for a period of time; as a member of the E-Squad, he was
responsible for handling emergency situations like fights, standoffs, disasters and riots.
(Aff. of Pl., ¶ 3; DE #32-1, pp. 1-2.)
2
In their Reply brief, Defendants cite to Ciomber v. Cooperative Plus,
Inc., 527 F.3d 635 (7th Cir. 2008) in support of the position that the Court
should refuse to consider the facts proposed by Plaintiff and enter summary
judgment in favor of Defendants. The Court notes that the local rule
described in Ciomber is more strictly defined than this Court’s local rule.
Furthermore, “[d]istrict courts have broad discretion to enforce and require
strict compliance with their local rules. See Elustra v. Mineo, 595 F.3d 699,
710 (7th Cir. 2010) (“We defer to the district court's understanding of its
own rules.”).” Benuzzi v. Board of Educ. of City of Chicago, 647 F.3d 652,
655 (7th Cir. 2011). This Court, in its discretion, will accept Defendants’
undisputed material facts but will also address the merits of the claims and
will consider the facts set forth in Plaintiff’s Response brief where
appropriately supported.
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Working overtime on the E-Squad allowed Plaintiff to earn extra
money.
(Resp.; DE #32, p. 2 & Aff. of Pl., ¶ 25; DE #32-1, p. 8.)
During the course of his employment, Plaintiff was supervised
by
various
Sergeants,
Lieutenants,
Captains,
Majors,
and/or
Superintendents. (Interrog. No. 2; DE #21-1, p. 4.) Plaintiff was
initially
positioned
in
the
area
known
approximately June 2007 to October 2007.
#32-1, p. 2.)
as
the
“yard”
from
(Aff. of Pl., ¶¶ 4-5; DE
Three of his specific supervisors during that time
were Sergeant Bollins, Sergrant Wilcox, and Captain Truax, all of
whom are Caucasian.
(Aff. of Pl., ¶ 6; DE #32-1, p. 3.)
While in
the “yard,” Plaintiff witnessed his supervisors engage in racially
inappropriate behavior and make racially offensive comments on a
regular basis.
For example, in July or August of 2007, Plaintiff
witnessed Sergeant Bollins chant the word “nigger” repeatedly to
African American prisoners while conducting a sarcastic imitation
of a rap song.
#32-1,
p.
Plaintiff’s
6.)
(Comp., ¶ 5; DE #1, p. 2 & Aff. of Pl. ¶ 16, DE
Additionally,
direct
presence,
around
Sergeant
that
same
Wilcox
time
referred
and
in
to
the
African American prisoners as “monkeys” and made racist jokes with
regard to them.
(Aff. of Pl., ¶ 9; DE #32-1, p. 4.)
Plaintiff
witnessed both Sergeant Bollins and Sergeant Wilcox using racist
jokes and racial slurs in an attempt to provoke the African
American prisoners into confrontations; the Sergeants also made
racist jokes directly to Plaintiff.
-5-
(Dep. of Pl., pp. 45-46; DE
#21-13, pp. 5-6.)
These racially charged incidents happened at
least three to four times a week while he was stationed in the
“yard.”
(Dep. of Pl., pp. 45-46; DE #21-13, pp. 5-6 & Aff. of Pl.,
¶ 13; DE #32-1, pp. 4-5.)
jokes very offensive.
Plaintiff found theses comments and
(Aff. of Pl., ¶ 16; DE #32-1, p. 6.)
While
in the “yard,” Plaintiff was frequently placed in “unnecessarily
hazardous situations” by his fellow correctional officers, all of
whom were Caucasian; he was left to break up large groups of
inmates by himself which was extremely dangerous as well as
stressful
to
Plaintiff.
(Id.
at
¶
7;
Id.
at
3.)
He
was
transferred from the “yard” to an “in-house” post in October of
2007.
(Id. at ¶ 5; Id. at 2.)
He describes the “in-house”
position as more dangerous and less desirable than the “yard”
position because of the ratio of guards to prisoners.
(Id. at ¶ 4;
Id. at 2.)
Plaintiff asserts that he was instructed by Sergeant Wilcox,
Sergeant Bollins, and Captain Truax to target and harass African
American prisoners by subjecting them to unfair treatment that was
not similarly directed at Caucasian prisoners.
14-15; DE #32-1, pp. 5-6.)
(Aff. of Pl., ¶¶
For example, Plaintiff was instructed
to continually search African American prisoners and break them up
whenever they congregated together, even if they were simply
talking.
(Aff. of Pl., ¶ 14; DE #32-1, p. 5.)
He was also
instructed to write African American prisoners up for non-existent
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or petty violations.
(Id.)
He was not asked to do the same to
Caucasian prisoners, nor did he see such things being done to them
by other Caucasian employees.
(Id.)
Furthermore, he was ordered
to frequently “shake down” the cells of African American prisoners;
such “shake-downs” took place nearly every day of the week for
African American prisoners while only sporadically for Caucasian
prisoners.
(Aff. of Pl., ¶ 15; DE #32-1, pp. 5-6.)
Plaintiff began dating a fellow employee named Shalana Graff,3
a Caucasian female nurse at the hospital, in August of 2007. (Dep.
of Pl., pp. 42-44; DE #21-13, pp. 2-4 & Aff. of Pl., ¶ 8; DE # 321, p. 3.)
He asserts that his relationships with his supervisors
soured significantly at this point because they objected to the
interracial relationship. (Aff. of Pl., ¶¶ 8, 17; DE #32-1, pp. 3,
6 & Dep. of Pl., pp. 41-45; DE 21-13, pp. 2-5.)
In support of this
contention, Plaintiff states that while Sergeant Wilcox never
directly told Plaintiff not to “date out of race” or asked him
specifically about his relationship with Shalana Graff, he did make
negative comments directly to Plaintiff about “little mixed kids”
and the “interracial thing” such as the general assertion that
“people should not mix races.”
(Aff. of Pl., ¶ 18; DE #32-1, pp.
6-7 & Dep. of Pl., pp. 44-45; DE #21-13, pp. 4-5.)
In addition,
during a meeting in September of 2007 at which Sergeant Wilcox was
3
Shalana Graf is referred to by various names/spellings throughout the
discovery documents; for purposes of this Order, the Court will refer to her
as Shalana Graff as listed (most often) in the Plaintiff’s Affidavit.
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also present, Captain Truax advised Plaintiff that he should not
date a co-worker, despite the fact that there was no specific
policy against it.
(Dep. of Pl., pp. 42-43; DE #21-13, pp. 3-4 &
Aff. of Pl., ¶¶ 10, 17; DE #32-1, pp. 4, 6.)4
Plaintiff notified Human Resources Director, Joan Cooper, at
least three times in 2007 (once in the summer and twice in
December) about the various discriminatory remarks and treatment,
but nothing was done to investigate or remedy the situation.
(Interrog. No.’s 14-15, 17; DE #21-12, pp. 3-5 & Aff. of Pl., ¶¶
21-22; DE #32-1, pp. 7-8.)
An employee fact file was kept for Plaintiff while he worked
at the Miami Correctional Facility.
In
general,
employee
Plaintiff
fact
file
received
up
until
(Emp. Fact File; DE #21-2.)
many
his
positive
first
entries
written
in
his
performance
evaluation, which was based on a review period from May 7, 2007,
through November 7, 2001.
#21-4.)
(Id. at 1-2 & Emp. Appraisal Report; DE
The evaluation indicates that Plaintiff was “meeting
4
Plaintiff also states that Officer Flick, a fellow officer and friend,
informed him that, due to repeated questioning, Sergeant Wilcox was aware of
the relationship between Plaintiff and Shalana Graff and that Sergrant Wilcox
had told Officer Flick that he felt people “shouldn’t date out of race.”
(Aff. of Pl., ¶¶ 8, 18; DE #32-1, pp. 3, 6 & Dep. of Pl., pp. 44-45; DE #2113, pp. 4-5.) However, there is an obvious hearsay issue with these
statements. Plaintiff has only cited to his own deposition testimony and
Affidavit. The Court is unaware of any deposition testimony or statements
made by Officer Flick in the record. Hearsay statements are not competent
evidence that may be used to oppose a motion for summary judgment. See
Haywood v. Lucent Techs., Inc., 323 F.3d 524, 533 (7th Cir. 2003). Thus, this
Court cannot consider these statements made outside of Plaintiff's presence in
evaluating his claims.
-8-
expectations” for all ranked areas of performance. (Emp. Appraisal
Report; DE #21-4.)
However, after this first evaluation, the
entries became more critical.
(Emp. Fact File; DE #21-2, 2-4.)
The employee fact file also contains notations of Plaintiff’s days
of missed work, both authorized and unauthorized.
(Id.)
The following are relevant examples of entries in Plaintiff’s
file.
On October 20, 2007, Plaintiff called into work requesting
personal leave for three hours, but he only had one and one half
hours of accrued time available.
(Emp. Fact File; DE #21-2, p. 2
& Letter of Counseling; DE #21-3.)
Because he did not have
sufficient time accrued, he was assessed one and one half hours
unauthorized leave and received a counseling letter.
(Id.)
A
positive yet constructively critical entry of Plaintiff’s work was
noted on November 9, 2007, which stated that he was doing a “good
job” and was a very professional officer with a lot of potential
but that he needed to improve by: 1) monitoring radio traffic more
closely; 2) being more professional and observant of surroundings;
and 3) continuing to know policy.
(Emp. Fact File; DE # 21-2, p.
2.) Plaintiff received a notation in his fact file on November 26,
2007, stating that he had made no logbook entries on November 4,
2007, and advising him that making logbook entries both accurately
and legibly was important.
(Id. at 3.)
Another notation was made
on December 16, 2007, advising him to “remain alert, observant, and
less distracted by offenders” and to “refrain from excessive
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conversations that are not work related.”
(Id.)
He requested a
transfer out of the Miami Correctional Facility in December of
2007, but this request was denied by the Human Resources Director,
Joan Cooper.
(Aff. of Pl., ¶ 23; DE #32-1, pp. 7-8.)
Plaintiff’s first annual written performance evaluation was
done for the period of May 7, 2007, to December 31, 2007, in which
his overall rating was “Does Not Meet Expectations.”
Appraisal Report; DE #21-5, p. 2.)
(Annual Emp.
The evaluation was signed by
the evaluator and reviewer on December 21, 2001.
(Id. at 3.)
It
explains that, while only being at the Miami Correctional Facility
for seven months, Johnson was “very aware of his job duties and
falls short in that area.”
(Id.)
The evaluation also refers to a
written reprimand received by Plaintiff on December 14, 2007, for
dereliction of duty and neglect of duty as a partial explanation
for his overall rating.
(Id. at 1.)
However, the Court notes that
such written reprimand is not provided in the record by either
party, and it is not noted in Plaintiff’s employee fact file.
Following
the
annual
performance
evaluation,
Plaintiff
received a written reprimand from Lt. Earl Edwards for requesting
personal time on January 2, 2008, when he had 0 hours of personal
time available.
#21-2, p. 3.)
(Written Reprimand; DE #21-6 & Emp. Fact File; DE
The reprimand states that further violations could
“result in a more severe disciplinary action” but that he was
entitled to appeal the reprimand.
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(Written Reprimand; DE #21-6.)
On January 8, 2008, Plaintiff entered the visitor processing area
without his State ID badge and was given a written reprimand for
violating
IDOC
and
Miami
Correctional
Facility
policies
characterized as insubordination, conduct unbecoming staff and
facility entrance and exit procedure.
p.
3
&
Results
However,
of
Plaintiff
(Emp. Fact File; DE #21-2,
Pre-Deprivation
Letter;
was
other
aware
of
DE
#21-9,
similarly
p.
1.)
situated
correctional officers (including one such officer in front of him
in line on January 8th) who forgot their ID badges and were only
verbally
warned,
not
officers were white.
Aff.
of
Pl.;
DE
disciplined
or
reprimanded;
these
other
(Interrog. No’s 18-21; DE #21-12, pp. 6-7 &
#32-1,
p.
9.)
Shortly
thereafter,
via
a
memorandum,5 Lieutenant Douglas Nelson requested that Plaintiff be
removed from the E-Squad because of his “attitude, demeanor, and
attendance” based on three factors: 1) he did not show up for a PT
Test on December 19, 2007, which would have made him an active
member of the E-Squad if he passed; 2) he had a Letter of Reprimand
and a recent Request for Administrative Action on file; and 3) on
January 8, 2008, he was involved in an argument with a fellow ESquad member during the forgotten State ID badge incident described
above.
(Inter-Dept. Memo; DE #21-7.)
Plaintiff’s employee fact file indicates that he missed work
5
The Court notes that the while the memorandum is dated January 6,
2008, one of the incidents cited in support of Plaintiff’s removal from the ESquad did not take place until two days after the date of the memorandum.
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and was carried unauthorized leave on the 13th, 16th, 17th, 21st,
22nd, 25th, 26th, 27th , 30th, and 31st of January and on the 4th,
5th, and 8th of February in 2008.
3-4.)
(Emp. Fact File; DE #21-2, pp.
The file indicates that he called in on the days he was
going to be out up until January 21, 2008, but that he was a no
call/no show from January 22, 2008 through February 8, 2008. (Id.)
Plaintiff, however, states that he in fact did call in until the
very end of January of 2008.
(Aff. of Pl., ¶ 27; DE #32-1, p. 9.)
The stress of Plaintiff’s working environment and fears for
his safety caused him to seek medical attention and begin a
“medical leave” of absence in mid-January. (Aff. of Pl., ¶ 26; DE
#32-1, p. 8.)
He obtained two doctor’s notes from Milton M.
Morgan, M.D., which he faxed to Defendants.
& Aff. of Pl., ¶ 27; DE #32-1, p. 9.)
(Dr. Notes; DE #32-5
The first note, dated
January 15, 2008, states that Plaintiff is “suffering from job
related stress and needs 3 wks off work - starts 1/13/08."
Notes; DE #32-5, p. 1.)
(Dr.
The second note, dated February 4, 2008,
states that Plaintiff is “still unable to work needs an additional
3 wks off - has stress.”
(Id. at 2.)
Plaintiff asserts that he
spoke with the Human Resources Director, Joan Cooper, prior to
taking his medical leave and was told he would receive Family
Medical Leave Act (“FMLA”) and Short Term Disability (“STD”)
paperwork to fill out but that the paperwork was never sent to him.
(Aff. of Pl., ¶ 27; DE #32-1, pp. 8-9.)
-12-
Both parties agree that
Plaintiff was not eligible under the FMLA because he had not been
employed by a state agency for an aggregate of twelve months.
(FMLA Denial Form; DE #21-10 & Resp.; DE #32, p. 7.)
may
have
been
Defendants.
available
to
him
if
properly
However, STD
authorized
by
Defendants claim that they provided the STD paperwork
to Plaintiff on January 23, 2008 both “in person and via U.S.
mail”6 but that Plaintiff did not return it.
p. 5 & STD Checklist; DE #21-11.)
(MSJ Memo.; DE #22,
Plaintiff, on the other hand,
asserts that he never received the necessary STD paperwork.
of Pl., ¶ 27; DE #32-1, p. 8.)
(Aff.
Plaintiff also states that he was
never advised of the Leave Without Pay policy which would have
“permitted [him] to continue [his] job status while on leave.”
(Id.)
The applicable policy states:
Authorized leave without pay is available to
you as a state employee whenever such leave is
deemed to be in the best interest of the
State. The leave request should be submitted
in writing and requires written approval by
the approving authority within your agency and
the State Personnel Director.
Although you
retain your job status, no pay or other
benefits are received during this leave.
(Leave Without Pay Policy; DE #32-7.)
Plaintiff states that he
kept Defendants apprised of his medical situation until the very
end
of
January
2008,
when
a
“night
6
shift
control
sergeant
The Court notes that Plaintiff’s employee fact file indicates that he
did not work on January 23, 2008, or any day after that. (Emp. Fact File; DE
#21-2, p. 4.) The Court also notes that the top of the STD Checklist form has
a handwritten notation of “mailed 1-23-08" with another notation of “handed”
crossed out. (STD Checklist; DE #21-11.) Therefore, it is highly unlikely
that he received this document in person as Defendants claim.
-13-
eventually told [him] that [he] didn’t need to keep calling in
anymore, since [he] had provided doctor statements, and was listed
already as being on leave.”
(Aff. of Pl., ¶ 27; DE #32-1, p. 9.)
A notice of pre-deprivation meeting was mailed to Plaintiff on
January 22, 2008, informing him that a pre-deprivation meeting was
scheduled for January 31, 2008.
acknowledges
that
he
was
(Notice; DE # 21-8.)
made
aware
of
the
Plaintiff
scheduled
pre-
deprivation meeting; however, he claims that, because he was still
on “medical leave” he spoke with Joan Cooper of the Human Resources
Department and asked if the meeting could be rescheduled; he never
received a phone call back with an update or a rescheduled date.
(Aff. of Pl., ¶ 31; DE #32-1, p. 10.)
The meeting was held in
Plaintiff’s absence, and a letter from Assistant Superintendent of
Operations Sally Stevenson was sent to Plaintiff on February 14,
2008, detailing the results of the pre-deprivation meeting and
suspending Plaintiff for thirty days pending dismissal.
(Letter
from Stevenson; DE #21-9, pp. 1-2.)
Hostile Work Environment
Title VII of the Civil Rights Act of 1964 states, in part,
that “[i]t shall be an unlawful employment practice for an employer
. . . to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because
of
such
individual's
race,
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color,
religion,
sex,
or
national origin.”
42 U.S.C. § 2000e-2(a)(1).
To establish a
hostile work environment claim under Title VII, a plaintiff must
show: (1) that his work environment was both objectively and
subjectively offensive; (2) that the harassment was based on
membership in a protected class; (3) that the conduct was severe or
pervasive; and (4) that there is a basis for employer liability.
Chaney v. Plainfield Healthcare Center, 612 F.3d 908, 912 (7th Cir.
2010).
The context of the workplace in its entirety must be taken
into account when assessing whether a hostile work environment
exists.
Id.
In this case, it is not specifically disputed that there is a
basis for employer liability.7
While Defendants do appear to
7
In order to establish a basis for employer liability, a plaintiff must
either show (1) that the hostile work environment was created or exacerbated
by his supervisors or (2) that his employer was “negligent in discovering or
remedying harassment by his coworkers.” Montgomery v. American Airlines,
Inc., 626 F.3d 382, 390 (7th Cir. 2010) (citing Andonissamy v. Hewlett–Packard
Co., 547 F.3d 841, 848 (7th Cir. 2008). In the context of racial harassment
cases, “[a] supervisor is someone with the power to directly affect the terms
and conditions of the plaintiff's employment.” Rhodes v. Illinois Dept. of
Transp., 359 F.3d 498, 506 (7th Cir. 2004). The word supervisor is “a term of
art that denotes more than an individual with a higher rank, a superior title,
or some oversight duties. . . . [Even a person with] extensive duties—such as
the combination of directing or managing a plaintiff's activities, providing
evaluation input to a plaintiff's supervisor, and training a plaintiff—do not
necessarily suffice.” Id. To establish employer liability based on the
actions of a plaintiff’s co-workers, a plaintiff must show that he made a
“concerted effort to inform [his employer] of the racial harassment he was
allegedly experiencing or that the harassment was sufficiently obvious to put
[his employer] on constructive notice.” Id. at 391.
Although Defendants do not specifically address this prong of the
hostile work environment claim in their Motion for Summary Judgment, Plaintiff
points out in his Response brief that there is a basis for Defendants’
liability based on the fact that his “coworkers, plus supervisors and other
superiors” harassed him. In fact, he states that the “majority of the
racially harassing conduct was committed by [Plaintiff’s] superiors.”
Defendants admit that Plaintiff was “supervised by various Sergeants,
Lieutenants, Captains, Majors, and/or Superintendents.” Plaintiff states that
some of those specific supervisors were Sergeant Bollins, Sergrant Wilcox, and
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dispute that the harassment was based on Plaintiff’s membership in
a protected class,8 they misunderstand this element. Plaintiff, an
African American, has presented evidence that the conduct in
question centers around issues of race and that such conduct
affected him directly.
As explained in more detail below, a
plaintiff need not be the subject of the hostile conduct if he is
in the “target area.”
Yuknis v. First Student, Inc., 481 F.3d 552,
554 (7th Cir. 2007).
Therefore, for purposes of this order, the Court finds that
only the objective and subjective offensiveness and the severity
and/or pervasiveness of the conduct described are disputed.9
In evaluating the severity and pervasiveness
of
the
conduct,
we
examine
all
the
circumstances, including the frequency of the
discriminatory conduct; its severity; whether
it is physically threatening or humiliating,
Captain Truax, and he proceeds to describe conduct attributable to them.
However, neither side presents specific evidence regarding the exact oversight
duties and/or powers of those supervisors.
In any event, the Court notes that Plaintiff has presented evidence that
he notified the Human Resources Department several times of the harassing
comments and treatment and that nothing was done to address the situation.
Viewing these facts in a light most favorable to Plaintiff, at the very least,
there is a sufficient basis to find that Defendants were negligent in
remedying the harassment by coworkers and/or supervisors, and this prong of
the hostile work environment claim has thus been met for summary judgment
purposes.
8
In their Motion for Summary Judgment and Reply brief, Defendants
argue that there is no evidence that “he [Plaintiff] was subjected to a
hostile work environment because of his race” (emphasis in original) or that
“he was the subject of racial jokes; he does not allege that his superiors
called him any racial epithet or said anything to him about his race. It was
the offenders, not the plaintiff, who were allegedly harassed.”
9
The Court notes that in their Motion for Summary Judgment and their
Reply brief Defendants do not specifically break out these elements; the
elements are closely intertwined.
-16-
or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s
work performance. Ultimately, to satisfy the
severe or pervasive prong, the plaintiff must
show that the work environment was both
subjectively and objectively offensive.
In
other words, the environment must be one that
a reasonable person would find hostile or
abusive, and one that the victim in fact did
perceive to be so.
Smith v. Northeastern Illinois University, 388 F.3d 559, 566 (7th
Cir. 2004) (internal quotation marks and citations omitted).
In
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82,
the Supreme Court emphasized that the “social context” in which the
harassment occurs must be considered when determining the objective
severity of the harassment and that the evidence should be viewed
“from the perspective of a reasonable person in the plaintiff's
position.”
The Supreme Court recognized, for example, that a slap
on the buttocks by a football coach to his player as he takes the
field must be viewed differently than the same type of slap
committed by a coach to his secretary while in his office.
81.
According to the Supreme Court,
[t]he real social impact of workplace behavior
often
depends
on
a
constellation
of
surrounding circumstances, expectations, and
relationships which are not fully captured by
a simple recitation of the words used or the
physical acts performed. Common sense, and an
appropriate sensitivity to social context,
will enable courts and juries to distinguish
between simple teasing or roughhousing . . .
and conduct which a reasonable person in the
plaintiff's position would find severely
hostile or abusive.
-17-
Id. at
Id. at 81-82.
Plaintiff has adequately alleged he subjectively perceived his
work environment to be hostile or abusive.
He offers an Affidavit
stating that he found the racist “jokes” and comments to be “very
offensive.”
least
He also complained to the Human Resources Director at
three
times
about
the
discriminatory
conduct,
and
he
requested a transfer to a different facility because of such
conduct. Plaintiff describes how the environment caused him stress
and that he had fears for his safety.
Finally, he sought medical
treatment and received a doctor’s note stating that he had job
related stress.
The
more
presented
complicated
evidence
to
analysis
show
that
is
whether
his
work
Plaintiff
has
environment
was
objectively hostile and severe and/or pervasive.
primary
argument
is
that,
because
the
Defendants’
harassment
was
not
specifically directed at Plaintiff, a hostile work environment did
not exist.
Defendants rely on Smith v. Northeastern Illinois
University, 388 F.3d 559, 567 (7th Cir. 2004) for this assertion.
In Smith, the district court dismissed one of the plaintiff’s10
hostile work environment claims; the Seventh Circuit agreed with
the district court that the plaintiff did not show that her work
environment was objectively hostile, mainly because the harassment
10
There were several plaintiffs in the Smith case; this section refers
to plaintiff Weaver.
-18-
was not directed at her.
Id. at 566.
The Seventh Circuit noted
that, although her clerical staff told her they overheard one of
the defendants use the terms “motherfucking black niggers” or
“motherfucking niggers” numerous times, she personally had only
overheard
the
defendant
say
“black
motherfucker”
one
time
throughout her many years as an employee and it was not said in
reference to her.
Id. at 566-67.
The Seventh Circuit stated that
“[w]hile certainly relevant to the determination of a hostile work
environment claim, when harassment is directed at someone other
than the plaintiff, the impact of such harassment is obviously not
as great as the impact of harassment directed at the plaintiff.”
Id. at 567 (internal quotation marks and citations omitted).
However, not all “second-hand” harassment was precluded by Smith,
and the Seventh Circuit specifically pointed out that “[w]e do not
mean to hold that a plaintiff can never demonstrate a hostile work
environment through second-hand comments or in situations where a
plaintiff is not the intended target of the statements.”
Id.
Indeed, Defendants (or Plaintiff for that matter) fail to
mention a more recent case wherein the Seventh Circuit cautions
against describing second-hand harassment as “categorically less
serious” than harassment aimed directly at a plaintiff. See Yuknis
v. First Student, Inc., 481 F.3d 552, 554 (7th Cir. 2007).
Yuknis
makes it clear that “target area” harassment, in the correct
context, is actionable and that “a belittling term like ‘second
-19-
hand’ . . . has no analytic function and is better avoided.”
554-55.
The Seventh Circuit stressed:
[t]he fact that one's coworkers do or say
things that offend one, however deeply, does
not amount to harassment if one is not within
the target area of the offending conduct-if,
for example, the speech or conduct is
offensive to women and one is a man, or
offensive to whites and one is a black. One
could be the target, as the plaintiff was in
the two incidents we mentioned, and it was
targeting that the Supreme Court seems to have
had in mind in Meritor Savings Bank v. Vinson,
477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49
(1986), when it spoke of a worker's ‘right to
work
in
an
environment
free
from
discriminatory intimidation, ridicule, and
insult.’ Or one could be in the target area
because a group of which one was a member was
being vilified, although one was not singled
out. . . .
In suggesting the alternative term ‘target
area,’ we do not mean to suggest that there
must be an intention of causing distress or
offense. A working environment may be deeply
hurtful to women even though the men who
created it were merely trying to please
themselves,
and
were
thus
guilty
of
insensitivity rather than aggression.
The
darts were aimed elsewhere, and hit the women
by accident.
But if as in this case the
charge
is
the
creation
of
a
working
environment hostile to women, the conduct must
be the kind that makes the workplace
uncomfortable for women, as distinct from
making it uncomfortable for cat lovers, for
people who are disgusted by coworkers who
violate work rules by selling Avon products at
work, for people offended by adultery, for
gamblers, and for fastidious people, who abhor
foul language. The point is elementary: the
creation of a hostile working environment is
actionable under Title VII only when the
hostility is to a group (or specific members
of a group), such as women, whom the statute
-20-
Id.
protects.
Id. at 554 (internal citations omitted; emphasis in original).
Here,
American,
the
record
personally
indicates
witnessed
that
his
Plaintiff,
supervisors
offensive comments and jokes on a regular basis.
an
make
African
racially
For example, he
witnessed Sergeant Bollins chant the word “nigger” repeatedly to
African American prisoners in the summer of 2007. Around that same
time, Sergeant Wilcox referred to the African American prisoners as
“monkeys” in Plaintiff’s direct presence. Plaintiff witnessed both
Sergeant Bollins and Sergeant Wilcox using racist jokes and racial
slurs in an attempt to provoke the African American prisoners into
confrontations.
According to Plaintiff, such racially charged
incidents happened at least three to four times a week.
He also
claims that his supervisors instructed him to target and harass
African American prisoners but not Caucasian prisoners.
he
states
that
his
relationship
with
his
Finally,
supervisors
soured
significantly after they learned that he had begun dating a fellow
employee who was Caucasian; he makes mention of negative comments
directed to him about “little mixed kids” and the “interracial
thing” such as the general assertion that “people should not mix
races.”
He was advised by Captain Truax that he should not date a
co-worker, despite the fact that there was no specific policy
-21-
against it.11
The Court declines to enter summary judgment on the hostile
work environment claim.
The conduct described clearly places
Plaintiff within the target area of the harassment.
The repeated
use of the racial “jokes” and slurs in Plaintiff’s presence, even
though not directed at Plaintiff, is objectively offensive and
likely altered the conditions of the working environment.
See
Chaney v. Plainfield Healthcare Center, 612 F.3d 908, 912 (7th Cir.
2010) (“Perhaps no single act can more quickly alter the conditions
of employment and create an abusive working environment than the
use of an unambiguously racial epithet such as “nigger” by a
supervisor in the presence of his subordinates.”) (citing Rodgers
v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir.
1993)).
Added to these “jokes” and slurs is the fact that
Plaintiff claims he was required to specifically target and harass
inmates of his own race but not Caucasian inmates.
The Court
agrees with Plaintiff in his assessment that:
[a]s a correctional officer, [Plaintiff] was a
member of law enforcement, an historically
11
As to the information in the foregoing paragraph, Defendants, in
their Reply brief, seemingly argue that the information in Plaintiff’s
Affidavit should be disregarded because it is “self-serving.” However, the
Seventh Circuit has recently used strong language in hopes of burying the
“misconception that uncorroborated testimony from the non-movant cannot
prevent summary judgment because it is ‘self-serving.’ If based on personal
knowledge or firsthand experience, such testimony can be evidence of disputed
material facts.” Berry v. Chicago Transit Authority, 618 F.3d 688, 691 (7th
Cir. 2010) (internal citation omitted). The Court notes that it “is not for
courts at summary judgment to weigh evidence or determine the credibility of
such testimony; we leave those tasks to the fact finders.” Id.
-22-
honorable league of individuals who’s job is
built around the concept of honest and
unbiased
enforcement
of
rules
for
the
protection of those under their guard and
care. Arbitrarily targeting one group based
on
race,
for
hyper-scrutiny
and
false
allegations is the antithesis of this ideal,
particularly when the targeted group is of
one’s own race.
(Resp.; DE #32, p. 12.) Considering the contours of a correctional
officer’s
job,
this
requirement
seems
likely
to
change
the
conditions of employment just as quickly as the use of a racial
epithet.
See Chaney, 612 F.3d at 912 (the entire context of the
workplace must be taken into account when assessing whether a
hostile work environment existed).
And, the directive not to date
a co-worker who happened to be Caucasian (despite the fact that
there was no specific policy against it) coupled with the negative
comments from his supervisors regarding “little mixed kids” and the
“interracial thing,” is objectively offensive when viewed in the
entire context of the workplace.
Finally, while Defendants argue that the remarks and behavior
described above were “isolated incidents,” the Court finds that
Plaintiff,
through
witnessed
racially
his
Affidavit,
offensive
has
conduct
adequately
and
alleged
language
by
he
his
supervisors on a near daily basis in the relatively short time he
worked for Defendants.12
Plaintiff is correct in noting that the
12
Again, the Court notes that it “is not for courts at summary judgment
to weigh evidence or determine the credibility of such testimony; we leave
those tasks to the fact finders.” Berry v. Chicago Transit Authority, 618
-23-
harassment does not need to be both severe and pervasive to be
actionable.
1999)
(“the
See Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir.
Supreme
Court
has
repeatedly
said,
using
the
disjunctive ‘or,’ that a claim of discrimination based on the
infliction of a hostile working environment exists if the conduct
is ‘severe or pervasive’”) (citations omitted)).
Based on the foregoing and viewing the facts in the light most
favorable to the non-movant, a reasonable jury could find that
Plaintiff was subjected to a racially hostile work environment;
thus, Defendants’ Motion for Summary Judgment as to the hostile
work environment claim is DENIED.
Retaliation
Title VII prohibits an employer from retaliating against an
employee “because he has opposed any practice made an unlawful
practice by this subchapter. . . .” 42 U.S.C. § 2000e–3(a).
Retaliation occurs under Title VII if an employee makes an effort
to oppose discrimination and their employer subsequently takes an
adverse action against them for doing so.
Illinois
University,
388
F.3d
559,
Smith v. Northeastern
567
(7th
Cir.
2004).
Retaliation can be shown by either the direct or indirect method.
Id.
Under the direct method, which Plaintiff has chosen to
utilize, he must show: (1) that he participated in an activity
F.3d 688, 691 (7th Cir. 2010).
-24-
protected by statute; (2) that his employer then took a materially
adverse action against him; and (3) that there was a causal
connection between the two events.
Benuzzi v. Board of Educ. of
City of Chicago, 647 F.3d 652, 664 (7th Cir. 2011). These elements
may be shown by using direct or circumstantial evidence.
See e.g.
Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 673
(7th Cir. 2011).
The Seventh Circuit has long used the phrase
“convincing mosaic” to describe a type of circumstantial evidence
that is often utilized in Title VII cases.
See Troupe v. May Dept.
Stores Co., 20 F.3d 734, 737 (7th Cir. 1994) (it is a “kind of
circumstantial
statements,
evidence
suspicious
.
.
.
timing,
that
consists
discrimination
of
ambiguous
against
other
employees, and other pieces of evidence none conclusive in itself
but together composing a convincing mosaic”). However, the Seventh
Circuit has also noted that the difference between direct and
circumstantial evidence is vague and that not every case must have
a “mosaic-like character” to avoid summary judgment.
SOS Children's Villages Illinois, Inc.,
Cir. 2006).
Sylvester v.
453 F.3d 900, 903-04 (7th
It is enough if a plaintiff can “prove by means of
circumstantial evidence that he engaged in protected activity . .
. and as a result suffered the adverse employment action of which
he complains.”
Id. at 902 (quotation marks and citation omitted).
Once a plaintiff has established these elements using the direct
method of proof:
-25-
the burden of production shifts to the
defendant to prove by a preponderance of the
evidence that the same action would have
occurred in the absence of the protected
conduct.
The
persuasiveness
of
the
defendant’s explanation is normally for the
finder of fact to assess, unless the court can
say without reservation that a reasonable
finder of fact would be compelled to credit
the employer’s case on this point.
Summary
judgment should be granted only if the
defendant presents unrebutted evidence that he
would have taken the adverse employment action
against the plaintiff even if he had no
retaliatory motive.
Culver v. Gorman & Co., 416 F.3d 540, 546 (7th Cir. 2005) (internal
quotation marks and citations omitted).
Materially adverse action in retaliation claims has been
construed broadly.
Smith, 388 F.3d at 568. While not every change
that causes an employee to be unhappy is considered materially
adverse, the concept is “not limited solely to loss or reduction of
pay
or
monetary
benefits.
adversity as well.”
It
can
encompass
other
forms
of
Smart v. Ball State University, 89 F.3d 437,
441 (7th Cir. 1996) (citing Collins v. State of Illinois, 830 F.2d
692, 703 (7th Cir. 1987)).
Such changes can even include things
like “put[ting] the complainant in a more unfriendly working
environment: actions like moving the person from a spacious,
brightly lit office to a dingy closet, depriving the person of
previously available support services (like secretarial help or a
desktop computer), or cutting off challenging assignments.”
v. State of Ind., 93 F.3d 1327, 1334 (7th Cir. 1996).
-26-
Knox
However, the
changes must be viewed in the context of the entire workplace, and
“[i]t all depends on how much of a change, and how disadvantageous
a change, took place.”
Sitar v. Indiana Dept. of Transp., 344 F.3d
720, 727 (7th Cir. 2003).
In general, “‘[m]aterially adverse
actions’ are those that might dissuade a reasonable employee from
engaging in protected activity . . . [and] this category sweeps
more broadly than the ‘adverse employment actions’ required to
sustain a discrimination claim.”
Benuzzi, 647 F.3d at 665 (citing
Thompson v. N. Am. Stainless, LP, –––U.S. ––––, 131 S.Ct. 863, 868,
178 L.Ed.2d 694 (2011); Burlington N. & Santa Fe Ry. v. White, 548
U.S. 53, 68 (2006)).
Causal connection is often the most difficult element for a
plaintiff to prove in a retaliation case.
Benuzzi, 647 F.3d at
665. Suspicious timing may be used to substantiate causality, but,
standing alone, it is rarely enough to defeat summary judgment
unless the materially adverse action follows immediately on the
heels of the employee’s engagement in a protected activity.
See
Id. at 665-66; see also Casna v. City of Loves Park, 574 F.3d 420,
427 (7th Cir. 2009).
Suspicious timing can be an “ally” to
plaintiffs, but it is not the end-all-be-all. Davis v. Time Warner
Cable of Southeastern Wisconsin, L.P., --- F.3d ----, 2011 WL
2611303, *9 (7th Cir. July 5, 2011).
Because “[s]uspicious timing
may be just that—suspicious,” context is extremely important in
determining “whether an inference of causality is warranted or
-27-
not.”
Id. (citation omitted).
Indeed, the Seventh Circuit has
noted that suspicious timing is simply evidence of causality, and
“thus there will be cases in which a plaintiff can demonstrate
causation despite a substantial time lag.”
Lalvani v. Cook
County., Ill., 269 F.3d 785, 791 (7th Cir. 2001).
A causal link
may also be shown by establishing that “the protected conduct was
a substantial or motivating factor in the employer’s decision. . .
. A motivating factor does not amount to a but-for factor or to the
only factor, but is rather a factor that motivated the defendant’s
actions.”
Culver, 416 F.3d at 545.
Finally, this link can be
proven using circumstantial evidence “if the trier of fact can
infer
intentional
discrimination.”
Id.
545-46
(emphasis
in
original).
Here, as to the first prong, Plaintiff claims he engaged in
statutorily
racially
protected
offensive
activity
and
when
harassing
he
complained
conduct,
about
the
retaliation,
and
discrimination (described in detail in the hostile work environment
section above) to the Human Resources Department in the summer of
2007 and at least twice in December of 2007.
Defendants appear to
argue that, because Plaintiff has not provided exact dates as to
when he submitted his complaints, he has not shown that he engaged
in any statutorily protected activity.13
13
The Court disagrees.
Defendants state that Plaintiff “cannot prove retaliation if he
cannot establish when he even made a complaint.” (Reply; DE #35, p. 10.)
-28-
While, as discussed below, timing can be applicable to determining
causation in a retaliation case, there is no requirement under the
law that a plaintiff must provide exact dates as to when he engaged
in the statutorily protected activity.
Plaintiff has provided a
general time frame of the conduct and has described subsequent
complaints to the Human Resources Department; his Affidavit when
read in conjunction with his responses to the Interrogatories
provide the necessary context.
Plaintiff has adequately shown he
engaged in protected activity for purposes of his retaliation
claims.
See Davis v. Time Warner Cable of Southeastern Wisconsin,
L.P., --- F.3d ----, 2011 WL 2611303, *8 (7th Cir. July 5, 2011)
(“we have held that [even] an informal complaint may constitute
protected activity for purposes of retaliation claims”) (internal
quotation marks and citation omitted).
As to the second prong, Plaintiff asserts that he suffered
materially adverse actions when: (1) he was transferred from the
“yard” to the more dangerous and less desirable “in-house” position
in October of 2007; (2) he was removed from the E-Squad in early
January of 2008 which caused him to lose possible overtime pay
benefits; and (3) he was suspended in February of 2008 and then
terminated.
While Defendants do not dispute that Plaintiff’s
removal from the E-Squad and later suspension and termination were
materially adverse actions, they do argue that his transfer from
the “yard” to the “in-house” position was not significant enough to
-29-
constitute
disagrees.
a
materially
Plaintiff
adverse
has
action.
presented
Again,
evidence,
the
Court
through
his
Affidavit, that being posted inside was much more dangerous than
being posted in the “yard.”
The Court agrees with Plaintiff that
it is possible that a trier of fact could conclude a reasonable
employee would be dissuaded from complaining of discriminatory
conduct if he thought it would result in him being transferred to
a
less
desirable
and
significantly
more
dangerous
position.
Therefore, the Court finds that Plaintiff has shown the actions
described
above
were
retaliation claims.
materially
adverse
for
purposes
of
his
See Benuzzi, 647 F.3d at 665.
Finally, Plaintiff argues that he has presented sufficient
circumstantial evidence to show a causal connection between the
protected activities and the materially adverse actions.
First,
Plaintiff argues that the timing between his complaints to the
Human Resources Department and all of the materially adverse
actions taken against him was suspicious.
He notes that his
transfer from the “yard” to the “in-house” position occurred
approximately two months after his first complaint was made to the
Human Resources Department in August of 2007.14
He further points
14
Plaintiff argues in his Response Brief that he made this complaint
in August; however, the Court notes that the record is less clear than
Plaintiff asserts. Nonetheless, his Affidavit can be used to establish that
he did not begin working in the “yard” until June of 2007 and that the
incident regarding Sergeant Bollins chanting rap songs and using the word
“nigger” over and over occurred in July or August of 2007. His answers to the
Interrogatories indicate that this incident, as well as the incident involving
Sergeant Wilcox telling Plaintiff to “go break up the monkeys” occurred in the
-30-
out that his removal from the E-Squad occurred mere weeks from the
complaints he made in December of 2007 and that his ultimate
suspension and termination were only approximately two months
later. The Court notes that none of the materially adverse actions
follow
immediately
“on
the
heels”
of
Plaintiff’s
complaints.
Therefore, he will need more to establish the requisite causal
connection.
Plaintiff provides the following as additional circumstantial
evidence from which, he argues, a reasonable trier of fact could
infer retaliatory discrimination was the reason for the materially
adverse actions: (1) subsequent to his complaint to the Human
Resources Department in August of 2007, he was subjected to
additional racial harassment by his supervisors related to his
relationship with a Caucasian employee; those supervisors made
comments to him regarding the “interracial thing,” “little mixed
kids,” and the general assertion that “people should not mix races”
and then called a meeting in September of 2007 to warn him not to
date
his
contained
coworker;
only
(2)
glowing
his
fact
file,
which
had
previously
comments,
began
accumulating
negative
comments thereafter;15 (3) following his complaints to the Human
“summer of 2007" and that he made his first complaint to the Human Resources
Department shortly thereafter. Giving Plaintiff the benefit of the inferences
to which he is entitled at this stage, the Court finds it reasonable to
conclude that this complaint was made in August of 2007.
15
The Court notes that, after his complaint to the Human Resources
Department in August of 2007, Plaintiff continued to receive mainly positive
comments until November 26, 2007. He was transferred to the “in-house”
-31-
Resources Department in December of 2007, his request to transfer
to another prison was denied by the Human Resources Director, Joan
Cooper; (4) although he requested FMLA and STD paperwork prior to
taking his “medical leave” in January of 2008, according to the
evidence most favorable to Plaintiff, Human Resources Director,
Joan Cooper, did not submit such paperwork to him or provide him
with any information regarding the Leave Without Pay policy, which
would have allowed him to continue his job status while on leave;
(5) after he received a notice in the mail that his pre-deprivation
hearing was scheduled for January 31, 2008, he spoke with Human
Resources Director, Joan Cooper, and requested that the meeting be
rescheduled because he was still on “medical leave;” however, he
never received a call back with a new hearing date, and the hearing
took place in his absence.
Plaintiff claims that these events,
when viewed in totality and as an ongoing pattern following his
complaints to the Human Resources Department, form a “complete
picture” from which a reasonable trier of fact could conclude that
Plaintiff was retaliated against for complaining to the Human
Resources Department about the discriminatory conduct.
Defendants,
on
the
other
hand,
argue
that
Plaintiff’s
circumstantial evidence fails to establish a causal connection
because his responses are “hopelessly vague” about the specifics
position in October of 2007. Therefore, this link, in and of itself, is very
attenuated. However, the Court will view this piece of circumstantial
evidence as part of a pattern of overall events.
-32-
and timing of his complaints to the Human Resources Department.
They also assert that a number of “intervening factors” break the
chain of causation between the complaints and the materially
adverse actions, namely that Plaintiff received a written reprimand
for unauthorized leave on January 2, 2008, that on January 8, 2008,
he forgot his State ID badge and subsequently became upset and
argumentative with fellow officers, and that he then failed to come
to work without a valid excuse.
As the Court has previously noted, the lack of specificity as
to the details and timing of the complaints to the Human Resources
Department do not serve to destroy causality. A general time frame
has
been
established,
and
the
details
of
the
case
and
the
circumstantial evidence described above provide the necessary
context.
While timing alone is not enough, Plaintiff has also
shown a subsequent pattern of events linking the materially adverse
actions together. When viewing these facts through a logical chain
of inferences, a reasonable trier of fact could conclude that
Plaintiff’s complaints to the Human Resources Department were a
motivating factor for the subsequent actions and thus constituted
impermissible retaliation.
See Culver, 416 F.3d at 545.
Although Defendants are correct in noting that “intervening
factors” clearly exist in the record, the Court is not convinced
that the events described above necessarily break the chain of
causality.
Plaintiff has presented evidence in rebuttal, which if
-33-
believed,
may
refute
Defendants’
assertion
that
there
are
“sufficient reasons supporting the decisions” made with respect to
Plaintiff. For example, although Defendants argue that Plaintiff’s
failure to bring his State ID badge to work was an “intervening
factor,” Plaintiff has pointed out that other similarly situated
Caucasian correctional officers (including one such officer in
front of him in line on January 8, 2008) also forgot their State ID
badges but were only verbally warned and not disciplined or
reprimanded.
He also points to evidence which, if believed, shows
suspicious conduct on the part of the Human Resources Department as
it relates to his “medical leave” and absences from work (i.e. that
the Human Resources Director, Joan Cooper, did not send him the
requested paperwork or advise him of his unpaid leave options).
Finally, Plaintiff has asserted that he was not able to defend his
conduct or absences at his pre-deprivation hearing because the
Human Resources Director, Joan Cooper, never called him back to
reschedule the hearing.
Defendants will be free to argue to a trier of fact that the
“intervening events” prove that the materially adverse actions
would have been taken regardless of whether Plaintiff had ever
complained to the Human Resources Department; however, as the Court
cannot determine definitively that a reasonable trier of fact would
be “compelled to credit the employer’s case on this point,” summary
judgment cannot be granted.
See Id. at 546 (“Summary judgment
-34-
should
be
granted
only
if
the
defendant
presents
unrebutted
evidence that he would have taken the adverse employment action
against the plaintiff even if he had no retaliatory motive.”)16
While the Court does not suggest that the required causal link has
been definitively shown by a preponderance of the evidence, the
facts presented are enough to allow Plaintiff to survive summary
judgment at this stage.
See Burnell v. Gates Rubber Co., 647 F.3d
704, 710 (7th Cir. 2011).
Summary judgment is therefore DENIED as
to Plaintiff’s retaliation claims.17
Discrimination
Title
VII
discriminating
prohibits
“against
employers
any
from
individual
firing
with
or
otherwise
respect
to
his
16
The Court notes that this case is distinguishable from Davis v. Time
Warner Cable of Southeastern Wisconsin, L.P., --- F.3d ----, 2011 WL 2611303,
*9 (7th Cir. July 5, 2011). In Davis, there was no doubt that the intervening
event (referred to in the opinion as the “elephant in the room”) served to
destroy causation between the protected activity and the materially adverse
actions; there, the plaintiff engaged in a transaction violating the
defendant’s unambiguous zero-tolerance policy which, as unrebutted evidence
showed, was strictly enforced regardless of an employees race. Id.
17
Neither party fully develops arguments related to which particular
decisionmaker was responsible for which particular materially adverse action.
The Court notes that the transfer from the “yard” to the “in-house” position
appears to have been decided by Captain Truax, the removal from the E-Squad
position appears to have been made by Dana Hewitt, E-Squad Commander, and the
ultimate suspension and termination appear to have been made by Sally
Stevenson, Assistant Superintendent of Operations. The Seventh Circuit
recognizes that a non-decisionmaker's illegal animus can infect a
decisionmaker. Schandelmeier-Bartels v. Chicago Park Dist., 634 F.3d 372 (7th
Cir. 2011). Here, there is no evidence that Dana Hewitt or Assistant
Superintendent of Operations Sally Stevenson had racial animus towards
Plaintiff. However, the evidence taken in the light most favorable to
Plaintiff suggests that a reasonable jury could find the materially adverse
actions were proximately caused by the discriminatory conduct and allegedly
false write-ups of Plaintiff’s supervisors and/or the actions and input of
Human Resources Director, Joan Cooper. Again, both parties may argue their
position regarding employer liability to a trier of fact.
-35-
compensation, terms, conditions, or privileges of employment”
because of an employee’s race.
“Acting
‘because
of
race’
See 42 U.S.C. §§ 2000e–2(a)(1).
means
discriminatory reason in mind.”
acting
with
a
racially
Brewer v. Board of Trustees of
University of IL, 479 F.3d 908, 915 (7th Cir. 2007) (citing Jordan
v. City of Gary, 396 F.3d 825, 832 (7th Cir. 2005); Hildebrandt v.
Ill. Dept. of Natural Resources, 347 F.3d 1014, 1029 (7th Cir.
2003)).
“direct
Here, Plaintiff has again chosen to proceed under the
method”
of
proof;
thus,
he
must
present
direct
or
circumstantial evidence which would “permit a reasonable jury to
conclude that the employer acted with discriminatory intent.”
Id.
Plaintiff uses the evidence described above in his hostile
work environment and retaliation claims (e.g. being made to witness
racially derogatory remarks by his supervisors to African American
inmates, being advised not to date a Caucasian coworker, being
forced to break up large groups of inmates by himself, and being
required to specifically target and harass black inmates) to argue
that a reasonable trier of fact could conclude he was subjected to
racial discrimination.
Plaintiff also points to the “suspicious
timing” of the sudden negative comments in his employee fact file18
and disciplinary actions taken against him.
He offers up his
removal from the E-Squad, pointing to the fact that at least one
18
Plaintiff asserts that a negative comment dated November 26, 2007,
referred back to an incident from early November, which leads to the inference
that that specific allegation and all those that followed were manufactured
due to racially discriminatory motives.
-36-
similarly situated Caucasian employee forgot his State ID badge on
the same day but was not likewise removed.
Finally, Plaintiff
again refers to the suspicious conduct by the Human Resources
Director,
Joan
paperwork,
Cooper,
reschedule
wherein
she
did
not
the
pre-deprivation
that
these
supply
requested
hearing,
or
call
Plaintiff back.
Defendants
argue
facts
are
insufficient
to
establish discrimination under the direct method because there is
no evidence that the allegedly discriminatory comments or conduct
played any role in the adverse employment actions taken against
him.
They state that Plaintiff has not shown that the people
involved in the employment decisions had any “race-based animosity”
towards him, and they point out that a number of intervening
factors (such as Plaintiff’s one-time failure to carry his State ID
badge, his un-excused absences, and his failure to attend the predeprivation hearing) “negate an inference of causation” as to his
discrimination claims.
The
Court
has
previously
addressed
Defendants’
regarding the “intervening factors” listed above.
argument
As stated,
Plaintiff has put forth sufficient evidence in rebuttal, and those
facts will be for a trier of fact to evaluate.
In addition, using
the same analysis of the facts as applied to the retaliation
claims, the Court finds that a reasonable trier of fact could
conclude that Defendants acted with discriminatory intent.
-37-
See
also footnote 17, supra.
Again, the Court is not suggesting that
Plaintiff’s claims have been shown by a preponderance of the
evidence; rather, the Court simply finds that the facts presented
are enough to allow Plaintiff to survive summary judgment at this
stage.
CONCLUSION
For the reasons set forth above, Defendants’ Motion for
Summary Judgment (DE #21) is DENIED and Plaintiff’s claims remain
pending.
DATED: September 16, 2011
/s/RUDY LOZANO, Judge
United States District Court
-38-
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