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DIAB v. ILLINOIS DEPARTMENT OF HUMAN SERVICES

February 3, 2003

NASSER DIAB, PLAINTIFF,
v.
ILLINOIS DEPARTMENT OF HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Charles R. Norgle, Sr. United States District Judge

OPINION AND ORDER

Before the court is Defendant's motion for summary judgment, brought pursuant to Federal Rule of Civil Procedure 56. For the following reasons, Defendant's motion is granted.

I. BACKGROUND*fn1

This case arises out of several incidents and alleged statements that occurred while Plaintiff, Nasser Diab ("Diab"), was working for Defendant, Illinois Department of Human Services ("IDHS"), at the John J. Madden Health Center. Diab, a registered nurse, is of Lebanese descent and was born in Germany. Diab filed his complaint on January 30, 1997, alleging that he was discriminated against based on his national origin in violation of 42 U.S.C. § 2000e et seq., ("Title VII"), and 42 U.S.C. § 1981.

Diab began working for IDHS on September 13, 1994. In December 1996, Diab, requested to be placed on a day shift. The day shift ran from 8:00 am. to 4:00 p.m. Diab's request was granted. In January 1997, Diab requested to be placed on a "flex-time" schedule allowing him to arrive to work at 9:00 a.m. and leave at 5:00 p.m., so that he would be able to take his daughter to school. Diab's request was denied.

Shortly after Diab' s request to be placed on "flex-time" was denied, he frequently arrived late to work or called in sick to work. Diab was tardy for work on 1/22/97, 1/27/97, 1/28/97, 3/14/97, 3/29/97, 3/20/97, 3/21/97, 3/24/97, 3/25/97, and 3/28/97. Diab called in sick to work on 2/27/97, 2/24/97, and 3/16/97. Diab was counseled by his supervisor, Arlene Maraviles ("Maraviles"), regarding his repeated tardiness and was also placed on a "proof of status," which required him to show proof for any further sick days he claimed.

On April 10, 1997 Maraviles scheduled a pre-disciplinary meeting with Diab for April 15, 1997 at 1:30 p.m. to discuss Diab's excessive tardiness and failure to follow Maraviles' directions regarding his abuse of time. On April 15, 1997 at approximately 1:15 Diab entered Maraviles' office and told her that he would not be attending the meeting. Diab also stated that he had friends who wanted to know who was mistreating him because "they're ready to pour acid to their faces." Maraviles, understandably, took this statement to be a threat and reported it to the Assistant Director of Nursing, Ruth Stevens.

Despite Diab's statements, the pre-disciplinary meeting continued as scheduled. The meeting was attended by Maraviles, Allen Morrison and Mary Ann Cebelinski who appeared on Diab's behalf as union representatives. Diab did not attend the meeting. After the meeting Diab's conduct was reported to several other administrative officials. On May 27, 1997 Diab was suspended for 29 days for abuse of time (tardiness), threatening and intimidating behavior, insubordination, and conduct unbecoming. Diab's suspension was later reduced to 20 days. Diab received full back pay for the time he was suspended.

Prior to being placed on suspension Diab was involved in an incident that lead to the injury of a patient. On May 1, 1997 patient R.C. alleged that two security guards slammed him to the floor for no reason, causing him injury. Armend A. Ranucci, an investigator for the IDHS Office of the Inspector General, was assigned to investigate the incident. After interviewing the security guards, patients, and hospital staff that were involved in the altercation, Ranucci reported that Diab threatened, intimidated, and harmed the patient. Furthermore, Ranucci reported that Diab inappropriately caused the patient to be placed in restraints, in violation of IDHS policy.

On July 25, 1997, a preliminary meeting was scheduled to discuss the incident, Diab, Allen Morrison, and Maraviles attended. On August 1, 1997, Diab submitted a written rebuttal to the accusations levied against him. Diab's actions were reviewed by several administrative officials. The administrative officials determined that Diab should be suspended pending his discharge. Diab appealed his discharge to the Illinois Civil Service Commission. Following a hearing it was determined that the charges, involving the patient, could not be proven and that his discharge was therefore unwarranted. Diab was rehired by IDHS and awarded full back pay.

Diab asserts that the denial of "flex-time," the 29 day suspension, and his dismissal were not based on his actions, but his national origin. Diab bases this assertion on several alleged statements made by Maraviles. Diab alleges that on several occasions from 1995-1997 Maraviles stated that he "should go back to Lebanon," and that "you guys born in Germany and [in the] [M]iddle [E]ast are lousy, and I am going to get you one way or another."

IDHS has filed a motion for summary judgment which is fully briefed and ripe for ruling.

II. DISCUSSION

A. Summary Judgment ...


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