United States District Court, Southern District of Illinois
January 23, 2002
BOBBY L. TURNER, PLAINTIFF,
HOUSING AUTHORITY OF JEFFERSON COUNTY AND MARSHA GIBBONS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE HOUSING AUTHORITY OF JEFFERSON COUNTY, DEFENDANTS.
The opinion of the court was delivered by: Gilbert, District Judge.
Bobby L. Turner has sued his former employer, the Housing Authority of
Jefferson County, Illinois, ("HAJC") alleging that he was subjected to
unlawful race discrimination that eventually resulted in his
termination. Turner also alleges that HAJC illegally fired him for
exercising his First Amendment right to free speech. Turner has made the
same claims against Marsha Gibbons, the Executive Director of the Housing
Authority, for her involvement in his termination.
The Defendants have filed a motion for summary judgment (Doc. No. 25),
along with supporting memoranda (Doc Nos. 26, 31). The Plaintiff has
responded to the motion (Doc. No. 30). For the reasons stated below, the
Court will grant in part and deny in part the motion for summary
Also before the Court is a motion by the Defendants to strike the
affidavit of John Kemp. (Doc. No. 22). The Plaintiff has responded to
the motion. (Doc. No. 23). For the reasons stated below, the Court will
deny the motion.
Summary judgment is proper when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together
with affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2548 (1986). A genuine issue of
material fact exists "only if there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party." Baron v.
City of Highland Park, 195 F.3d 333, 338 (7th Cir. 1999) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2205
(1986)). In this case, the Court must review the record in the light most
favorable to Turner and draw all reasonable inferences in his favor. See
Del Raso v. United States, 244 F.3d 567, 570 (7th Cir. 2001).
The Plaintiff's brief states that "[m]otions for summary judgment in
employment discrimination cases must be approached with added rigor
. . . ." The Seventh Circuit has recently addressed its previous use of the
phrase "added rigor" in employment discrimination cases. In Alexander v.
Wisconsin Department of Health and Family Services, 263 F.3d 673 (7th
Cir. 2001), the Court stated:
Although it is understandable how one might infer from
our regular use of this phrase that we meant to
communicate a more stringent standard to be used in
reviewing employment cases, the original use of this
phrase indicates that it was merely included to stress
the fact that employment discrimination cases
typically involve questions of intent and
credibility, issues not appropriate for this court to
decide on a review of a grant of summary judgment.
Thus, regardless of our inclusion of the phrase "added
rigor" in prior cases, we review a district court's
decision to grant a motion for summary judgment on a
claim involving issues of employment discrimination as
we review any case brought before this court involving
the review of a grant of summary judgment.
Alexander, 263 F.3d at 681. Therefore, this Court will analyze the
instant motion for summary judgment using the same standard as it would
to analyze any motion for summary judgment, keeping in mind that any
genuine issues of material fact about intent or credibility should not be
resolved at this stage.
Pursuant to Local Rule 7.1(h) the parties have submitted a joint
statement of undisputed facts as part of the summary judgment motion
packet. (Doc. No. 27). The parties agree that the following facts are
Bobby Turner is an African-American male. Answer to Complaint, ¶
6. Turner was hired by the Housing Authority of Jefferson County
("HAJC") as a part-time employee on November 20, 1995. Gibbons
Affidavit, ¶ 2. On the same day, the HAJC hired Gary Newell as a
part-time employee. Gibbons Affidavit, ¶ 3. Newell is a Caucasian
male. On April 1, 1996, Turner and Newell were both hired as full-time
maintenance employees and given "Maintenance I" status. Gibbons
Affidavit, ¶¶ 4, 6. On April 1, 1997, both Turner and Newell were
promoted to "Maintenance II" status. Gibbons Affidavit, ¶ 7.
Neither Turner nor Newell received another promotion during their
respective tenures with the HAJC. Gibbons Affidavit, ¶ 8. Turner
and Newell performed the same duties while they were Maintenance II
employees. Turner Deposition, p. 36. Newell resigned from his position
with HAJC on June 22, 1998. Gibbons Affidavit, ¶ 10.
Turner complained to Marsha Gibbons, Executive Director of the HAJC, on
several occasions that he was entitled to a raise and promotion because
he was doing the same work as maintenance III and IV employees. Turner
Deposition, pp. 40, 47-48. Specifically, Turner claims that he
complained about an HAJC policy that required him to wear a beeper and
take after-hours calls. Gibbons Affidavit, ¶ 23-26. That policy
went into effect in August 1998. Turner was off work from August 12, 1998
through February 1, 1999 with an injury. Gibbons Affidavit, ¶ 24.
When Gibbons returned to work in February 1999, he was no longer required
to take after-hours calls. Id., ¶ 25. Turner never actually took
any after-hours calls. Turner Deposition, pp. 150-51.
On July 2, 1999, Turner began a scheduled vacation. On July 13, 1999,
when Turner returned, Gibbons fired him. In the meantime, on July 6,
1999, the HAJC's outside attorney, David Overstreet, interviewed Annette
Woodward and Yolanda Taylor at the request of Gibbons. Overstreet
Affidavit, ¶ 5. The reason for Overstreet's investigation, the
results of his investigation and the effect that those results had on
Gibbons' decision to terminate Turner are disputed.
The Federal One-Strike policy requiring the eviction of tenants if
tenants or their guests are involved in criminal or drug offenses is
issued to HAJC by HUD and HAJC is required to enforce this policy in
order to receive its funding. Gibbons Affidavit, ¶¶ 11, 13. After
his termination, Turner picketed the HAJC regarding what he believed was
the unfair treatment of tenants with regard to evictions conducted
because of violations of the Federal One-Strike Policy. Id., ¶ 15.
In particular, following his termination, Turner protested the fact that
the HAJC could use employees with prior drug convictions to evict tenants
under the One-Strike Policy. Id. Turner never picketed the HAJC prior to
his termination. Id.
The Defendants maintain that Turner was fired because he made threats
of violence to other employees and that neither Turner's race nor his
previous complaints had anything to do with the decision to fire him.
According to the Defendants, on June 23, 1999, maintenance office
employee Annette Woodward reported to her supervisor, Warren Stark, that
Turner had made threatening remarks to her. Specifically, the Defendants
maintain that Woodward told Stark that Turner had threatened to send a
"ticking" package to the HAJC and that they should "look out." Woodward
Deposition, p. 34-35. The Defendants maintain that Turner also made a
veiled threat to "shoot everyone" at the HAJC. Id. The Defendants
maintain that Stark passed along Woodward's report of this incident to
Gibbons. Gibbons Deposition, pp. 14-15. The Defendants maintain that
Gibbons then spoke directly to Woodward, who described the incident,
stating that a summer worker, Yolanda Taylor had also been present.
Gibbons Deposition, pp. 17, 33. Gibbons maintains that she almost
immediately reported the incident to the police and the FBI.
As noted above, it is undisputed that Gibbons asked HAJC's outside
counsel, Overstreet, to conduct an investigation into the threat
incident. It is undisputed that Overstreet interviewed Woodward and
Taylor. According to the Defendants, Woodward confirmed the report that
she had made to Gibbons. Overstreet Affidavit, ¶ 6. According to
the Defendants, Taylor confirmed Woodward's story but believed Turner was
joking. Overstreet Affidavit, ¶ 8. According to Defendants,
Overstreet reported his findings to Gibbons. Overstreet Affidavit,
¶ 10. Defendants maintain that Gibbons made the decision to
terminate Turner solely on the
basis of Overstreet's report. Gibbons Deposition, p. 12.
Turner, however, contends that he never made any threats, that the
investigation of June / July 1999 was a sham and that he was targeted by
Gibbons because of complaints that he made about his lack of promotion
and about the HAJC's drug-related policies. Turner has testified that
the last time he made the complaints was on or around June 30, 1999
— two weeks before he was fired. Turner Deposition, p. 131.
Turner claims that, at that time, he complained both that he had not been
promoted and about the HAJC's drug-related policies.
Specifically, the Plaintiff offers several pieces of evidence that he
believes undermines the credibility of Gibbons' story about the
investigation. The Plaintiff's most important evidence is the testimony
of Yolanda Taylor, who contradicts Woodward's version of the June 23
incident and denies that she made comments to Overstreet supporting
Woodward's story. Taylor supports Turner's story that he never threatened
anyone. Taylor Deposition, pp. 73-75; Taylor Affidavit.
The Plaintiff has also discovered phone records indicating that Gibbons
did not contact the police until about a week after she claims that she
learned of the threats. This contradicts Gibbons' story that she
contacted the police almost immediately. According to the Plaintiff,
this evidence undermines the credibility of Gibbons' whole story.
Moreover, Turner alleges that Gibbons had an animosity towards all
African-Americans, and that her attitude was demonstrated by racist
comments that Gibbons made in the workplace. Turner offers the testimony
of several people that overheard Gibbons make racist comments in the
workplace. See Phillips Deposition, p. 10 (a former employee testifying
that she heard Gibbons say "lazy nigger never wants to come to work on
time" around 1992 or 1993); Chiapelli Deposition, pp. 6, 11, 12 (the
spouse of an HAJC employee testifying that he overheard Gibbons say "we're
not paying that black SOB anything" sometime in 1997); Kemp Affidavit,
¶¶ 7-9 (a former employee stating that he heard Gibbons make racist
comments and use the word "nigger" several times); Taylor Deposition,
pp.24, 26 (testifying that she heard Gibbons use the word "nigger.") The
plaintiff offers no evidence that Gibbons made racist comments about
Turner, that Turner was ever aware of any racist comments while he worked
at HAJC or that Gibbons ever directed racist comments to Turner.
I. Title VII / Section 1981
In Counts I and II, Turner has asserted four forms of race-based
discrimination in violation of Title VII (Count I) and § 1981 (Count
II): (a) hostile environment, including racial comments; (b) denial of
promotion from Maintenance II to Maintenance III status; (c) disparate
treatment, including orders that Turner take after-hours calls; and (d)
Title VII provides that it is unlawful for an employer "to fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to compensation, terms,
conditions, or privileges of employment, because of such individual's
race, color, religion, sex, or national origin."
42 U.S.C. § 2000e-2(a)(1). Similarly, § 1981 states that "[a]ll
persons within the jurisdiction of the United States shall have the same
right . . . to the full and equal benefit of the laws . . . as is enjoyed
by white citizens." 42 U.S.C. § 1981. Because Section 1981 and
Title VII claims are analyzed in the same manner, Eliand v. Trinity
Hosp., 150 F.3d 747, 750 (7th Cir. 1998), the Court will simultaneously
review Turner's claims under Title VII and Section 1981. Each of the
alleged forms of race-based discrimination, must be analyzed separately.
A. Hostile Environment
With respect to Mr. Turner's hostile environment claim (Plaintiff's
Complaint, Count I ¶ 13), the evidence does not establish an
inference that he was subjected to a hostile environment actionable under
the antidiscrimination laws.
"For . . . harassment to be actionable, it must be sufficiently severe
or pervasive so as to alter the conditions of the victim's employment and
to create an abusive working atmosphere." McKenzie v. Illinois Dep't of
Transp., 92 F.3d 473, 479 (7th Cir. 1996). Because "Title VII is not
directed against unpleasantness per se but only . . . against
discrimination in the conditions of employment," Carr v. Allison Gas
Turbine, 32 F.3d 1007, 1009 (7th Cir. 1994), we consider "the frequency
of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance." Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 67, 371 (1993).
"[I]solated and innocuous incidents will not support a hostile
environment claim." McKenzie, 92 F.3d at 480.
"The employee must subjectively perceive the harassment as sufficiently
severe and pervasive to alter the terms or conditions of employment, and
this subjective perception must be objectively reasonable." Cooke v.
Stefani Management Services, Inc., 250 F.3d 564, 566-67 (7th Cir. 2001).
The random use of a racial epithet or stray remarks are insufficient to
support a hostile environment claim. Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993); McPhaul v. Board of Comm'rs, 226 F.3d 558, 567 (7th Cir. 2000).
When harassing statements are "directed at someone other than the
plaintiff, the impact of [such] `second hand harassment' is obviously not
as great as the impact of harassment directed at the plaintiff." McPhaul
v. Board of Commissioners, 226 F.3d 558, 567 (7th Cir.2000) (internal
quotations and citations omitted).
In this case, each of the derogatory comments that the Plaintiff
alleges were unknown to the Plaintiff prior to his termination. The
Plaintiff does not allege that Gibbons ever addressed him using the term
"nigger" or any other derogatory term. The Plaintiff offers no other
support for his hostile environment claim. In fact, in the Plaintiff's
response to the Defendants' motion for summary judgment, the Plaintiff
apparently abandons his attempt to make a hostile environment claim.
This Court finds that the evidence offered by the Plaintiff does not
support a claim under Title VII or Section 1981 for hostile environment
discrimination. Turner could not have subjectively perceived Gibbons'
comments as severe or pervasive so as to alter the conditions of
employment when Turner did not learn about the comments until after his
B. Failure to Promote
Turner alleges that he was denied promotion from Maintenance II to
Maintenance III status because of his race. Plaintiff's Complaint, Count
I ¶¶ 22-23. The evidence presented by the Plaintiff, however, does
not create a genuine issue
of material fact about whether Turner was denied a promotion because of
A plaintiff alleging race discrimination under Title VII and § 1981
can prove such discrimination by providing direct evidence of an
employer's discriminatory intent or by showing disparate treatment using
indirect evidence and the burden-shifting method established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792
, 93 S.Ct. 1817 (1973).
Turner does not offer any direct evidence that the denial of promotion
was based on race. Although there is some evidence of inappropriate
remarks made by Marsha Gibbons, the Plaintiff does not offer any evidence
connecting those remarks to the decision not to promote Turner. Stray
remarks, unrelated to the employment decision in question do not
constitute direct evidence that the decision was racially motivated.
See, e.g., Curry v. Menard, 270 F.3d 473, 476 (7th Cir. 2001); Gorence
v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir. 2001).
Thus, for Turner's "denial of promotion" claim to survive summary
judgment, the Plaintiff must prove a prima facie case of discrimination
under the burden-shifting method, which, in the denial of promotion
context, requires him to show that: (1) he is a member of a protected
group; (2) he was qualified for the position sought; (3) he was rejected
for the position; and (4) the employee promoted was not a member of the
protected group and was not better qualified than the plaintiff. See Payne
v. Milwaukee Cty., 146 F.3d 430, 434 (7th Cir. 1998). It is undisputed
that Turner satisfies the first criterion. The Plaintiff has failed,
however, to establish triable issues of fact as to the other elements of
the prima facie case.
First, the Plaintiff has completely failed to put forward any evidence
that there was a Maintenance III position open while he was employed by
the Housing Authority. Second, the Plaintiff has failed to put forward
any evidence about the qualifications required for a Maintenance III
worker. Third, the Plaintiff has offered no evidence about his own
ability to do that job. Finally, despite an allegation that "white
employees were promoted," the Plaintiff has not put forward any evidence
that a non-African-American with equal or lesser qualifications was
promoted to the Maintenance III position.
On the other hand, the Defendants have put forward undisputed evidence
that an identically situated Caucasian employee was promoted on the same
schedule as Turner. Gibbons Affidavit ¶¶ 2-10. Newell, a
Caucasian, and Turner were both hired as part-time maintenance employees
on November 20, 1995. Newell and Turner were both made full-time
employees on April 1, 1996 and both designated as Maintenance I workers.
And, Plaintiff and Newell were both promoted to Maintenance II status on
April 1, 1997. Newell was not further promoted before he resigned in June
1998. Finally, the Defendants contend that no other maintenance worker
was promoted during the Plaintiff's employment, and the Plaintiff's
response either concedes or fails to challenge that fact.
Therefore, the Court finds that the evidence offered by the Plaintiff
does not support a claim under Title VII or Section 1981 for denial of
promotion. The Court need not consider whether the Defendants have
proffered a legitimate reason for not promoting the Plaintiff, because the
Plaintiff has failed to offer any evidence establishing the second, third
and fourth elements of his prima facie case.
C. Disparate Treatment
Turner alleges that, during his employment with the Housing Authority,
treated differently than similarly situated employees. Plaintiff's
Complaint, Count I ¶¶ 18-20. Specifically, he alleges that he was
required to take after-hours calls and wear a beeper, that only
Maintenance III and IV workers were generally required to take
after-hours calls and that no other Maintenance II worker was required to
take after-hours calls. Id.
The Plaintiff does not offer any direct evidence that the requirement
that he take after-hours calls and wear a beeper was imposed because of
his race. The evidence of inappropriate remarks made by Gibbons,
unrelated to the employment decision in question do not constitute direct
evidence that the decision was racially motivated. See, e.g., Curry v.
Menard, 270 F.3d 473, 476 (7th Cir. 2001); Gorence v. Eagle Food Ctrs.,
Inc., 242 F.3d 759, 762 (7th Cir. 2001).
Thus, for Turner's "disparate treatment" claim to survive summary
judgment, the Plaintiff must prove a prima facie case of discrimination
under the burden-shifting method, which, in the disparate treatment
context, requires him to show that: (1) he is a member of a protected
class; (2) he was meeting his employer's legitimate expectations; (3) he
suffered an adverse employment action, and (4) he was treated less
favorably than others who were similarly situated. Logan v. Caterpillar,
Inc., 246 F.3d 912, 919 (7th Cir. 2001). The Plaintiff has failed to
establish a triable issue of fact as to the third and fourth elements of
his prima facie case.
First, the Plaintiff has not established that he suffered a tangible
adverse employment action. "A tangible employment action constitutes a
significant change in employment status, such as hiring, firing, failing
to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits." Burlington
Industries, Inc. V. Ellerth, 524 U.S. 742, 761 (1998) citing with
approval Crady v. Liberty Nat'l Bank & Trust Co. of Ind., 993 F.2d 132,
136 (7th Cir. 1993) (stating that "[a] materially adverse change might be
indicated by a termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss
of benefits, significantly diminished material responsibilities, or other
indices that might be unique to a particular situation"); see also Fyfe
v. City of Fort Wayne, 241 F.3d 597, 601 (7th Cir. 2001) (denial for
reimbursement for travel and lodging expenses at seminar not an adverse
employment action); Oest v. Illinois Dept. of Corr., No. 99-3883, 2001 WL
122111 (7th Cir. Feb. 14, 2001) (negative performance evaluations not
adverse employment actions); Bell v. Environmental Prot. Agency,
232 F.3d 546, 555 (7th Cir. 2000) (cancelling a conference call with the
plaintiff and failing to greet her or speak to her were trivial matters
that were not adverse employment actions); Harlston v. McDonnell Douglas
Corp., 37 F.3d 379, 382 (8th Cir. 1994) (reassignment to more
inconvenient job insufficient).
In other words, "not everything that makes an employee unhappy is an
actionable adverse action. Otherwise, minor and even trivial employment
actions that an employee did not like would form the basis of a
discrimination suit." Murray v. Chicago Transit Auth., 252 F.3d 880, 888
(7th Cir. 2001).
The parties have not directed the Court to a controlling case directly
on-point, but the Court has concluded that this case is similar to the
ones cited above and that the Plaintiff has not alleged a tangible
adverse employment action. The requirement that the Plaintiff wear a
beeper and take after-hours calls did not constitute a materially adverse
change in employment.
Even if the requirement would otherwise have constituted a materially
adverse change, the requirement apparently had little or no effect on
Turner. The Plaintiff has not disputed that the policy was implemented
in August 1998, that Turner was off work from August 12, 1998 to February
1, 1999 with an injury and that when Turner returned to work he was no
longer required to take after-hours calls. In fact, it is undisputed
that Turner never actually answered an after-hours call.
Moreover, the Plaintiff has failed to put forward any evidence showing
that he was treated less favorably than other similarly situated
employees. Although the Plaintiff's Complaint alleged that Caucasian
Maintenance II workers were not required to take after-hours calls
(Plaintiff's Complaint, Count I ¶ 20), the Plaintiff has not put
forward any evidence that any Caucasian Maintenance II worker was not
required to take after hours calls.
Therefore, the Court finds that the evidence offered by the Plaintiff
does not support a claim under Title VII or Section 1981 for disparate
D. Retaliatory Discharge — Allegation that Discharge was a
Result of Complaints About Employment Actions
Turner makes "retaliatory discharge" claims in Counts I and II,
alleging that he was fired in retaliation for his previous complaints
about what he perceived as the racially discriminatory practices of the
Housing Authority. Plaintiff's Complaint, Count I ¶¶ 8-12 (alleging
that Turner was fired because of his "previously voiced opposition to
racially discriminatory practices, policies, and customs of the Housing
Authority and racial animosity toward African-Americans, including
Turner"). Because these claims appear within the Plaintiff's employment
discrimination counts, the Court will assume that the Plaintiff intended
to allege that he was terminated as a result of complaints that he made
about the HAJC's employment practices.*fn1
The Defendants argue that the Plaintiff makes the retaliatory discharge
claim for the first time in the Plaintiff's response to the Defendants'
motion for summary judgment. On the contrary, as noted above, the
Plaintiff's Complaint clearly asserts a claim for retaliatory discharge,
and the Plaintiff has never argued that he was fired simply because he is
Title VII forbids an employer to discriminate against an employee
because he has "opposed any practice made an unlawful employment practice
by [Title VII], or because [she] has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing
under [Title VII]." 42 U.S.C. § 2000e-3(a); Clark Co. Sch. Dist. v.
Breeden, 121 S.Ct. 1508, 1509 (2001) (per curiam).
To establish a retaliation claim under Title VII, a plaintiff may
present direct evidence of retaliation or proceed using a burden shifting
mechanism. Fyfe v. City of Fort Wayne, 241 F.3d 597, 601 (7th Cir.
2001); Contreras v. Suncast Corp., 237 F.3d 756, 765 (7th Cir. 2001). In
this case, the Plaintiff does not offer any direct evidence that his
termination was in retaliation for protected activity. As discussed
above, the evidence of stray racist remarks made by Gibbons, absent a
showing of a connection between those remarks and a specific employment
decision, do not
constitute direct evidence that the decision was racially motivated. See,
e.g., Curry v. Menard, 270 F.3d 473, 476 (7th Cir. 2001); Gorence v. Eagle
Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir. 2001).
In order to prevail on a claim for retaliation under Title VII using
the burden-shifting mechanism, a plaintiff must first establish a prima
facie case by showing that (1) he engaged in statutorily protected
activity, (2) he suffered an adverse employment action by his employer,
and (3) there is a causal link between the protected expression and the
adverse action. Fyfe v. City of Fort Wayne, 241 F.3d 597, 601-02 (7th
Cir. 2001); Aviles v. Cornell Forge Co., 241 F.3d 589, 592 (7th Cir.
2001). The burden of production then shifts to the defendant to
articulate a legitimate, non-discriminatory reason for its action.
Aviles, 241 F.3d at 592. If the defendant is able to provide evidence of
such a reason, the burden shifts back to the plaintiff to show that the
articulated reason is actually a pretext for discrimination. Aviles, 241
F.3d at 592.
1. Plaintiff's Prima Facie Case.
In this case, the Court finds that the Plaintiff has made a prima facie
case for retaliatory discharge under Title VII and Section 1981.
First, the Plaintiff has put forward some evidence that Turner engaged
in statutorily protected activity. In an affidavit, Turner has stated
that on June 29, 1999, during a meeting with Marsha Gibbons and Warren
Stark, he stated that he felt that he had been denied promotion and
previously forced to answer after-hours calls because of his race. Mr.
Turner claims that he told Gibbons and Stark that he planned to file a
charge with the EEOC.*fn2
Second, the Defendants do not dispute that Turner's termination was an
adverse employment action.
Third, the Court finds that the temporal sequence of the alleged events
establishes a causal relationship for the purposes of the Plaintiff's
prima facie case. See Clark Co. Sch. Dist. v. Breeden, 121 S.Ct. 1508,
1511 (2001) (per curiam); Sweeney v. West, 149 F.3d 550, 557 (7th Cir.
1998). To establish a causal connection merely by temporal proximity,
the employer's adverse action must follow "fairly soon" after or be "very
close" to the employee's protected conduct." Breeden, 121 S.Ct. at
1511; Fyfe v. City of Fort Wayne, 241 F.3d 597, 603 (7th Cir. 2001)
(18-month interval between expression and adverse employment action does
not show causation); Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th
Cir. 1992) (four months insufficient); Juarez v. Ameritech Mobile Comm.,
Inc., 957 F.2d 317, 321 (7th Cir. 1992) (six months insufficient);
compare Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1314-15
(7th Cir. 1989) (one week sufficient); Johnson v. Sullivan, 945 F.2d 976,
980 (7th Cir. 1991) (one day sufficient). The fact that the plaintiff
was fired two weeks after his complaints to management is a short enough
time to establish the necessary causal link. See McClendon v. Indiana
Sugars, Inc., 108 F.3d 789, 796-97 (7th Cir. 1997) (collecting cases).
In this case, Turner was fired on July 13, 1999, two-weeks after
allegedly complaining of racial discrimination and threatening an EEOC
went on vacation on July 2 and was terminated his first day back to work.
The Court finds that the temporal proximity of Turner's alleged complaint
and his termination establishes a causal link for the purposes of the
Plaintiff's prima facie case.
2. Defendant's Burden to Articulate a Legitimate Reason.
Having established the prima facie case, the Plaintiff has shifted his
burden to the Defendants to explain the reason for its termination of
Turner. McDonnell, 411 U.S. at 802-03, 93 S.Ct. at 1824. "An employer
may account for its conduct by articulating at least some legitimate,
nondiscriminatory reason for discharging the employee." Lenoir v. Roll
Coater, Inc., 13 F.3d 1130 (7th Cir. 1994) citing Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1989).
In this case, the Defendants state that Turner was fired because
management honestly believed that Turner had directed threats towards
other employees. The testimony of Gibbons, Woodward and Overstreet
supports that story.
The Court finds that the Defendants' explanation has a reasonable basis
in fact. The Court also finds that Turner's alleged conduct, if true,
would be sufficient to warrant discharge. There is no question that if
the Defendants honestly believed that Turner actually made threats of
violence, that Turner could be rightfully discharged. See Lenoir v. Roll
Coater, 13 F.3d 1130, 1133 (7th Cir. 1994) (holding that if management
honestly believed that the plaintiff employee possessed a weapon, wielded
at co-workers and made menacing comments then management had a reasonable
explanation for discharging the plaintiff employee).
Because the Defendants' explanation had both a reasonable basis in fact
and Turner's conduct, if true, would be sufficient to warrant discharge,
the burden of proving a Title VII violation shifts to the Plaintiff to
show that the Defendants' explanation is merely a pretext for retaliatory
discharge. Lenoir v. Roll Coater, 13 F.3d 1130, 1133 (7th Cir. 1994).
The precise question before the Court on summary judgment is whether
Turner has "provided evidence from which a rational trier of fact could
infer that the employer's stated reasons for taking the adverse action
were lies." Alexander v. Wisconsin Dep't of Health and Human Services,
263 F.3d 673, 683 (7th Cir. 2001).
Thus, "[i]f the only reason an employer offers for [taking adverse
action] against an employee is a lie, the inference that the real reason
was a forbidden one . . . may reasonably be drawn. This is the common
sense behind McDonnell Douglas." Bell v. E.P.A., 232 F.3d 546, 550 (7th
Cir. 2000) (quoting Anderson v. Baxter Healthcare Corp., 13 F.3d 1120,
1124 (7th Cir. 1994)). "Because a fact-finder may infer intentional
discrimination from an employer's untruthfulness, evidence that calls
truthfulness into question precludes summary judgment." Id. (quoting
Perdomo v. Browner, 67 F.3d 140, 145 (7th Cir. 1995)).
Additionally, racist remarks that do not constitute direct evidence,
may be considered at the pretext stage of a plaintiff's indirect evidence
case, in conjunction with other proof, to call into question the
truthfulness of the employer's stated reasons for an adverse action.
Pafford v. Herman, 148 F.3d 658
, 666 (7th Cir. 1998); Huff v. UARCO,
Inc., 122 F.3d 374, 385 (7th Cir. 1997); Rush v. McDonald's Corporation,
966 F.2d 1104
, 1114 (7th Cir. 1992) (stating that "evidence of racial
hostility, if demonstrated, might still be relevant
to show that the reasons given for the plaintiff's discharge were
Therefore, at the pretext stage, the Court must consider that Taylor's
testimony contradicts the testimony of Woodward, that several people have
testified that Gibbons made racist comments in the workplace and that
there are discrepancies between Gibbons' story and the HAJC phone
records. Considering all of this evidence, along with the Plaintiff's
prima facie evidence, the Court finds that the Plaintiff has put forward
sufficient evidence from which a rational trier of fact could infer that
the Defendants' stated reason for Turner's termination was pretext.
As noted above, employment discrimination cases often hinge on
questions of credibility. This case is such a case. On summary
judgment, courts are not permitted to assess the credibility of the
various testimony before them. This Court has not done so here. Every
reasonable inference must be made in favor of the non-moving party. This
Court has done so here. Finding that the record contains conflicting
testimony as to material issues of fact, the Court has concluded that the
Plaintiff's claim for retaliatory discharge cannot be resolved by summary
II. First Amendment — Allegation that Discharge was a Result of
Complaints About HAJC's Drug-Related Policies.
In Count III of his Complaint, the Plaintiff attempts to state a First
Amendment retaliation claim under 42 U.S.C. § 1983. Turner alleges
that he was fired because he complained about the HAJC's drug-related
policies. Turner alleges that he complained about the HAJC's policy under
which tenants are evicted if a family member or guest of a tenant is
arrested or convicted of a criminal offense involving drugs.
Specifically, Turner alleges that he complained that this policy was
unfair in light of the fact that the Housing Authority employed a
Caucasian male who had been convicted of a criminal offense involving
drugs. Plaintiff's Complaint, Count III, ¶¶ 13-14. In Count III,
Turner also alleges that he was fired because he complained about the
treatment that he personally received as an employee.*fn3 Plaintiff's
Complaint, Count III, ¶¶ 15-20.
In order for Turner to establish a § 1983 claim based on the First
Amendment, he must demonstrate that: (1) his conduct was constitutionally
protected and (2) his conduct was a substantial or motivating factor in
the defendants' challenged actions. See Thomsen v. Romeis, 198 F.3d 1022,
1027 (7th Cir. 2000).
Therefore, the Court must first determine whether Turner's speech
addresses matters of public concern. Weicherding v. Riegel, 160 F.3d 1139,
1142 (7th Cir. 1998), citing Connick v. Myers, 461 U.S. 138, 146, 103
S.Ct. 1684, 75 L.Ed.2d 708 (1983). "Whether an employee's speech
addresses a matter of public concern must be determined by the content,
form, and context . . . as revealed by the whole record." Gray v.
Lacke, 885 F.2d 399, 410 (7th Cir. 1989), cert. denied, 494 U.S. 1029,
110 S.Ct. 1476 (1990), citing, Connick, 461 U.S. at 147-48, 103 S.Ct.
1684. The question of whether the speech relates to a matter of public
concern is for the court. Campbell v. Towse, 99 F.3d 820, 826 (7th Cir.
In this case, three alleged expressions are involved, namely (1)
Turner's complaints about his own conditions of employment,
(2) Turner's complaints about the Housing Authority's so-called
"One-Strike" policy, and (3) Turner's complaints about the Housing
Authority's employ of a Caucasian who had been arrested and convicted of
drug crimes to evict tenants under the One-Strike policy.
The Defendants argue that Turner's complaints about his own employment
conditions do not involve a public concern. In the Plaintiff's response
to the motion for summary judgment, the Plaintiff either concedes, or at
least, does not challenge this argument. Therefore, the Court has
concluded that Turner's complaint about his own job conditions are
outside the scope of First Amendment protection.*fn4
Moreover, the Plaintiff's response to the motion for summary judgment
disavows the argument that his termination was a result of his complaints
about the HAJC's "One-Strike" policy. Rather, the Plaintiff chooses to
focus exclusively on Turner's third alleged expression — his
complaint about the HAJC's employ of a Caucasian who had been arrested
and convicted of drug crimes. See Plaintiff's Response p. 17 (stating
"[Turner] was not complaining about the One-Strike policy. Rather, he
was complaining that a white employee with drug arrests and convictions
was being used to evict black tenants.").
First, the Court must determine whether Turner's complaint about the
HAJC's employ of a Caucasian with drug convictions to evict tenants
pursuant to the HAJC's One-Strike drug policy was a matter of public
concern. The Plaintiff concludes, without citing a single case, that
Turner's complaint about the HAJC's drug policies qualifies as a matter
of public concern. See Plaintiff's Response, p. 17. On the other hand,
the Defendants, without citing a single case, conclude that the complaint
amounts to only a "personal beef on Plaintiff's part . . . ." See
Defendant's Reply to Plaintiff's Response, p. 8.
The Court's own research reveals that whether Turner's alleged
complaint to Gibbons included content that might be considered a matter
of public concern is a close call. In Michael v. St. Joseph Co.,
259 F.3d 842, 846-47 (7th Cir. 2001), the Seventh Circuit has stated that
if a complaint is "centered upon personnel matters and the operation of
the [government] Department" it is outside the scope of the First
Amendment. Turner's complaint is about a personnel matter. He was
complaining about the job responsibilities of one particular co-worker.
On the other hand, the essence of Turner's alleged complaint was that he
believed that it was unfair for the HAJC to employ a Caucasian, who had
been convicted of drug crimes, to evict tenants because they had been
convicted of drug crimes. Thus, Turner's complaint might be construed as
addressing a matter of public policy and public concern.
The Court's analysis, however, is not limited to an examination of the
content of Turner's speech. In addition to the content of Turner's
speech, the Court must also consider the form and the context of Turner's
speech. "[T]he fact that
an employee speaks up on a topic that may be deemed one of public import
does not automatically render his remarks on that subject protected."
Smith v. Fruin, 28 F.3d 646, 651 (7th Cir. 1994). Rather, the Court
must "`look at the point of the speech in question: was it the employee's
point to bring wrongdoing to light? Or to raise other issues of public
concern, because they are of public concern? Or was the point to further
some purely private interest?'" Callaway v. Hafeman, 832 F.2d 414, 417
(7th Cir. 1987) (quoting Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th
Cir. 1985)). "Where considerations of content, form, and context suggest
that an employee raised a topic of societal interest for "personal reasons
rather than a desire to air the merits of the issue," Smith v. Fruin,
28 F.3d 646, 652 (7th Cir. 1994), or solely to "bolster [his] own
position in a private personnel dispute with [his] superiors," Cliff v. Bd.
of School Com'rs of City of Indianapolis, 42 F.3d 403, 411 (7th Cir. 1994),
the speech is not entitled to First Amendment protection.
In Connick v. Myers, 461 U.S. 138
, 148, 103 S.Ct. 1684, 1690-91 (1983)
the Supreme Court noted that the plaintiff employee "did not seek to
inform the public that the District Attorney's office was not discharging
its governmental responsibilities in the investigation and prosecution of
criminal cases," and the Court held that the employee's complaints made
solely within the D.A.'s office were not within the scope of First
In Walscetti v. Fox, 258 F.3d 662, 667 (7th Cir. 2001) the Court stated
that "[t]he fact that the complaints were made during the course of an
apparently long-running dispute with her immediate supervisors, the
context of and apparent motivation for her speech, also indicates that
the speech was not directed toward airing a matter of public concern."
In this case, Turner alleges that he made his complaint about the
HAJC's drug-related policies on June 29, 1999 to Gibbons. Turner does
not allege and has put forward no evidence that he sought to inform the
public of his complaint prior to his termination. His pre-discharge
complaint to Gibbons was not made as part of the public dialogue. Only
after his discharge did Turner publicly air his complaint. Moreover, his
alleged complaint to Gibbons on June 29 was made simultaneously with
Turner's personal complaints about his employment and in the context of
an apparently long-running dispute between Turner and his immediate
Accordingly, this Court concludes that, based on the record before it,
the purpose of Turner's complaint about the HAJC's drug polices was
simply to further his own goal of expressing his personal displeasure
with his employer. Further, the Court concludes that Turner made the
complaint primarily for the personal reason of bolstering his own
employment gripes. The Court cannot conclude that Turner's central
motivation was to uncover wrongdoing or to bring an issue to the
attention of the public. Turner's complaint was more like a personal
grievance. Therefore, Turner's complaint about HAJC's drug policies did
not involve a matter of public concern and is outside the scope of First
Because the Court has concluded that Turner's alleged complaints are
outside the scope of First Amendment protection, the Court need not
consider whether his complaints were a substantial or motivating factor
behind his termination. The Court finds that the evidence offered by the
Plaintiff does not support a claim under § 1983 for First Amendment
III. Motion to Strike Kemp Affidavit.
The Defendants have made a motion to strike the affidavit of John
Kemp. (Doc. No. 22). The Defendants argue that the Court should grant the
motion because the Plaintiff failed to disclose Kemp's address during
discovery. The Defendants argue that "[i]t is inequitable to permit
Plaintiff to provide testimony from a person he claimed he was unable to
locate." The Plaintiff has responded by noting that Kemp is a former
employee of the Defendant and that, therefore, the whereabouts of Kemp
"would have been known to Defendants." (Doc. No. 23).
The Court's disposition of the instant summary judgment motion does not
depend on the existence of the Kemp affidavit, and, its absence would not
have resulted in a different outcome. Therefore, the Plaintiff's failure
to disclose Kemp's address has been harmless.
The Court will ameliorate any possible future harm to the Defendants by
extending discovery for the limited purpose of allowing the Defendants an
opportunity to depose Kemp.
The Defendants' Motion for Summary Judgment (Doc. No. 25) is GRANTED,
in part, as follows: In Counts I and II, the Plaintiff's claims for
hostile environment, failure to promote and disparate treatment are
hereby DISMISSED with prejudice. Count III, in its entirety, is hereby
DISMISSED with prejudice.
To clarify, the Plaintiff's claims for retaliatory discharge under
Title VII and Section 1981, found in Counts I and II have not been
dismissed. To the extent that the Motion for Summary Judgment seeks
dismissal of the retaliatory discharge claims found in Counts I and II,
the Motion is DENIED.
The Defendants' Motion to Strike the Affidavit of John Kemp (Doc. No.
22) is DENIED. Discovery shall be extended until February 23, 2002, for
the limited purpose of allowing the Defendants to depose John Kemp.
IT IS SO ORDERED.