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O'HARA v. ILLINOIS DEPT. OF MENTAL HEALTH

June 27, 2000

EDWARD O'HARA, PLAINTIFF,
V.
ILLINOIS DEPARTMENT OF MENTAL HEALTH, AND JANIS THOMAS, DONALD KRAYBILL, MARY BROGAN, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Bucklo, District Judge.

  MEMORANDUM OPINION AND ORDER

From 1992 to October 1995, Mr. O'Hara worked as a janitor for the Department at a different facility. In September 1995, he was charged with assaultative conduct and disruption of the worksite, in particular, acting in a belligerent and aggressive manner at a co-worker's grievance hearing in August 1995, where he falsely represented himself as a union steward, was asked to leave, refused to do so, and continued to yell at those in the room. He was fired on October 10, 1995. After grievance arbitration, he was allowed to submit his resignation effective January 7, 1996, and the discharge was reversed to "separation/no reason," although Mr. O'Hara says the union local did this deal without his consent.

Mr. O'Hara filed an EEOC charge alleging race and sex harassment, discrimination, and retaliation, and got a right to sue letter on January 12, 1996. He filed this lawsuit in November 1996, alleging violations of Title VII and civil rights laws under 42 U.S.C. § 1981 (race) & 1983 (free speech). The defendants move for summary judgment, and I grant the motion, finding in their favor and against Mr. O'Hara.

I.

Summary judgment is a way of resolving a case where there would be no point in a trial. It is appropriate where there is no material issue of fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). This means that if the facts argued by (here) the plaintiff would not support a verdict in his favor even if they were believed, there would be no reason to have a trial to find out if they were true. In considering a summary judgment motion, I take the facts in the light most favorable to Mr. O'Hara, Fulk v. United Transp. Union, 160 F.3d 405, 407 (7th Cir. 1998), but Mr. O'Hara must come forward with enough evidence so that a rational jury could find for him at trial. Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Mr. O'Hara was represented by counsel when he filed this lawsuit, but is now proceeding without a lawyer. I must "ensure that the claims of a pro se litigant are given a fair and meaningful consideration." Palmer v. City of Decatur, 814 F.2d 426, 428-29 (7th Cir. 1987). Pro se pleadings are to be "held to less stringent standards than those prepared by counsel." Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir. 1996). However, I am not Mr. O'Hara's lawyer, and while I will give him every reasonable benefit of the doubt, I will not make his case for him.

The defendants claim that the majority of Mr. O'Hara's claims are time barred, having occurred more 300 days before he filed discrimination charges. They argue that only his actual termination and two other minor incidents of alleged harassment are within the limitations period. However, these events come back into the lawsuit on the continuing violations doctrine, under which conduct that falls outside the limitations period is actionable if it is linked with related acts that fall within the period. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). The doctrine is applicable when the conduct can be recognized as actionable only in the light of later events that occurred within the limitations period, Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 396 (7th Cir. 1999), because the plaintiff had no reason to believe that he had been subject to actionable conduct when the events outside the limitations period occurred. Selan, 969 F.2d at 565-66. That is true here, although as will emerge it is largely irrelevant because Mr. O'Hara has waived most of the disputed episodes.

II.

A.

I begin with Mr. O'Hara's Title VII claims. His first theory is race harassment. A plaintiff may establish a violation of Title VII by proving that discrimination based on race, sex, or some protected characteristic has created a hostile or abusive work environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Harassment must be sufficiently severe or pervasive to make the workplace intolerable for the members of the group discriminated against. Minor v. Ivy Tech State College, 174 F.3d 855, 857 (1999). Moreover, harassment is actionable only if it is "because of" race or some other protected characteristic. Shermer v. Illinois Dep't of Transp., 171 F.3d 475, 477 (7th Cir. 1999). Title VII does not impose liability on an employer for creating or condoning a hostile working environment unless the hostility is motivated by some status that the statute protects. Heuer v. Weil-McLain, 203 F.3d 1021, 1024 (7th Cir. 2000). Mr. O'Hara presents no evidence that he was harassed because of his race or sex. He swears in an affidavit that:*fn1

(1) He was "segregated" from eating in the lunchroom with his co-workers or written up if he was observed in the lunchroom eating. Even if so, Mr. O'Hara would have to offer, e.g., (1) direct evidence of discriminatory motivation, for example, racist remarks in connection with this "segregation," or (2) evidence that similarly situated whites were not thus "segregated" or written up for using the lunchroom, or that similarly situated African-American men, if any, were also thus "segregated" or written up. Otherwise, the evidence is just that Mr. O'Hara may have been unfairly treated, but not necessarily because of race. He offers no evidence whatsoever of racial or other illegal animus.

Mr. O'Hara says that he could offer such evidence at trial and has witnesses who could testify for him, but he does not say who they are or what they would say.*fn2 I read the record and all reasonable inferences to be drawn from it in his favor, but I can't just take his word that the evidence exists and, if believed, would justify a verdict in his favor. He must come forth with the evidence. See Liu v. T & H Machine, Inc., 191 F.3d 790, 796-97 (7th Cir. 1999). Although I give Mr. O'Hara the benefit of the doubt, unargued claims are treated as waived, that is, in effect not made. United States v. Payne, 102 F.3d 289, 293 (7th Cir. 1996).

(2) Mr. O'Hara says that false allegations were made that he allegedly sexually assaulted a patient and made a death threat, but both allegations were found on investigations to have been groundless. However, Mr. O'Hara does not offer any evidence tying the investigations or any false allegations to racial or other prejudice. There was an allegation of patient abuse while Mr. O'Hara was on duty; he among others was investigated as required by Department policy, and was not a suspect. The state police investigated an anonymous death threat received by Department supervisors in the mail, but Mr. O'Hara was not disciplined for anything relating to this investigation. In the circumstances, failing to investigate Mr. O'Hara would have been irresponsible, and so investigating him was not adverse action, harassment, or other discrimination, as long as he was not singled out for no good reason, and he was not. ...


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