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TURNER v. HOUSING AUTHORITY OF JEFFERSON COUNTY
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.
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 ...