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TURNER v. HOUSING AUTHORITY OF JEFFERSON COUNTY

January 23, 2002

BOBBY L. TURNER, PLAINTIFF,
V.
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.

        ORDER
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 judgment.
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.

STANDARD

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.

BACKGROUND

Undisputed Facts

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 undisputed.
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.
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.

Disputed Facts

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.

ANALYSIS

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) retaliatory discharge.
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 ΒΆ 13), the evidence does not establish an inference that he was subjected to a hostile ...


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