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March 27, 2003


The opinion of the court was delivered by: Rebecca R. Pallmeyer, United States District Judge.


Plaintiff George Jackson ("Jackson") works for the City of Chicago's Department of Transportation ("DOT") as a carpenter. On July 17, 2001, he brought suit against Defendant City of Chicago ("City") and the Chicago and Northeast Illinois District Council United Brotherhood of Carpenters and Joiners of America, Local 13*fn1 ("Union"), alleging race discrimination and retaliation in employment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Specifically, Jackson asserts that the City discriminated against him on the basis of race (he is African-American) by failing to promote him in 1997 and again in 2000. He alleges that the Union also discriminated against him on the basis of race by failing to prosecute a grievance filed in response to his non-promotion in 2000. Jackson finally claims that the City's 2000 employment decision constituted an unlawful retaliation against him because of an earlier claim of race discrimination he filed against the City.


George Jackson is an African-American man who has been employed by the City of Chicago as a carpenter since March 13, 1987. (Pl.'s 56.1. ¶¶ 1, 2.) He was hired in the City's Department of Public Works, which subsequently was divided into two departments: the Department of Transportation ("DOT") and Department of General Services ("DGS"). (Id. ¶ 2.) He is currently a carpenter with the DOT. He came to the City after working for 12 years at the Chicago Housing Authority ("CHA"). In 1997, DGS posted a job opening for Foreman of carpenters, which Jackson applied for, and in 1999, DOT posted two job openings for General Foreman of carpenters, and Jackson submitted applications for these openings as well. At the time of these applications, Jackson had over 30 years experience as a carpenter as well as substantial formal training and education. He was not chosen for either position.

I. 1997 Department of General Services Foreman Position*fn3

The Job Opportunity Bid Announcement posted in March 1997 for Foreman of Carpenters stated that the minimum qualifications for the position were: "Successful completion of an approved apprentice training program in carpentry supplemented by a minimum of two years of journeyman carpentry experience."*fn4 (Ex. 30 to Pl.'s 56.1.) Job duties listed included ordering materials and equipment, coordinating subordinates' work, and ability reading blueprints. (Id.) Ten people submitted bids for this position, including Jackson. (City's 56.1 ¶ 4.) Of these ten applicants, nine were interviewed by Frank Scalise, General Superintendent of Trades, and Jimmy Jones, General Foreman of Trades. (Scalise Aff. ¶ 4, Ex. C to City's 56.1.) The interviewers asked each candidate five questions regarding basic carpentry skills.*fn5 (Scalise Aff. ¶ 5, Ex. C to City's 56.1.) Scalise and Jones rated each candidate in four categories: previous job experience; previous supervisory experience; previous job performance in a City department; and written and oral skills. (Hiring Criteria Rating Form, Ex. C to City's 56.1.) Scalise and Jones each individually completed a Department of Personnel Hiring Criteria Rating Form, on which they assigned the candidates a numerical score, on a scale of one to five (one being the lowest and five the highest) in each of the individual categories. (Id.) Plaintiff received the second lowest score of the nine candidates based on the interview.*fn6 (City's 56.1 ¶ 4.)

Michael Capecci was selected for the promotion on June 20, 1997. (City's 56.1 ¶ 5.) Capecci had been working for the City as a carpenter since 1992. (Capecci Dep. at 6, Ex. 16 to Pl.'s 56.1.) Other than a one-semester course after high school that he could not clearly recall, Capecci had received no formal education or training in carpentry. (Capecci Dep. at 20-21, Ex. 16 to Pl.'s 56.1.) He never attended trade school, nor did he ever participate in an apprenticeship program, but he did obtain a union card, which meant that he was able to become a union member (a requirement for the job) even though he had not been through formal training as an apprentice or in a trade school. (Id. at 18-19, 21-22, Capecci Bid Application, Ex. 36 to Pl.'s 56.1, City's Resp. to Pl.'s 56.1 ¶ 21.)

The record is not entirely clear regarding Capecci's prior work experience. Before moving over to the City, he worked as a carpenter for a company called T & T Construction, but there is conflicting evidence regarding the length of his tenure. During his deposition, Capecci stated that he worked at T & T for approximately four years, and that for the last two years of his tenure there, he supervised fellow carpenters. (Id. at 31, 32.) During a 1999 arbitration hearing, however, Capecci testified that he could not recall whether he began working with T & T in September 1990 or February 1989 and acknowledged that the Personnel Data Form he completed in 1992 when applying to work for the City reflects that he began working for T & T in September 1990, only two years earlier. (Capecci's Arb. Testimony at 121-22, lines 10-28; Ex. S to City's Resp. to Pl.'s 56.1 ¶ 36.) Capecci's position at T & T was the first job in which he was required to read blueprints, but his work assignments there did not include ordering materials or equipment, nor did it involve coordination of subordinate employees' work. (Capecci Dep. at 32, 35-37.)

The City contends that Jackson did not have the two years of supervisory experience necessary to be a Foreman. (Scalise Aff. ¶ 1, Ex. C to City's 56.1.) The job description itself, however, does not include a requirement of two years of supervisory experience. (Job Opportunity Bid Announcement of March 1997, Attached to Scalise Aff., Ex. C to City's 56.1.) At the time of the 1997 bid announcement, Jackson had 26 years of carpentry experience, including 22 years as a journeyman carpenter. (Jackson Aff. ¶ 5, Ex. 12 to Pl.'s 56.1.) Jackson completed a one year pre-apprenticeship program, completed a four year approved apprenticeship program at Washburne Trade School in 1975, and began working as a journeyman carpenter that same year. (Id. ¶¶ 1, 4, 6, 39, 41.) He learned to read blueprints as part of his apprenticeship program at Washburne, and while pursuing an Associate's Degree in engineering at Daley Community College, Jackson took a number of classes to further his skills in this area. (Id. ¶¶ 3, 11.) Jackson completed his Associate's Degree in 1995. (Id. ¶ 3.)

Jackson worked for approximately 12 years for the Chicago Housing Authority ("CHA"), serving for over two years in a supervisory position. (Id. ¶ 10.) In this role, he organized, assigned, and reviewed the work of subordinate carpenters, supervised carpenters and other workers in the construction trades, determined project requirements, and ordered tools and materials necessary to complete jobs. (Id. ¶¶ 6-13.)

Jackson contends that the City "ensured" that Capecci received the promotion by choosing him to "act up" as Foreman on numerous previous occasions. (Pl.'s 56.1 ¶ 99.) "Acting up" is the term used to describe an employee who serves temporarily in a position higher than his own, i.e. a regular carpenter serving as a Foreman, or a Foreman substituting for a General Foreman. (City's 56.1 ¶ 6.) An employee who acts up receives the same pay he would receive if he formally held the higher position. (Pl.'s 56.1 ¶ 107.) The Collective Bargaining Agreement ("CBA") is silent on the filling of temporary vacancies. (Arbitration Opinion and Award regarding selection of Acting General Foreman of June 28, 2001, Union Ex. 14 at 9 to Union's 56.1.)

The City responds that its decision to have an individual act up depends on the needs of the department, including the need for continuity of supervision and record keeping, and the projected length of time the Foreman or General Foreman will be absent. The City further explains that an individual is chosen to act up based upon his own ability, availability, and experience, in light of the other projects he would otherwise be directing. (City's 56.1 ¶ 6.)

Jackson denies that the choice of which employees should act up is based solely on these proffered factors, and claims that the City discriminates against African-Americans by routinely choosing less qualified white employees to act up. (Pl.'s 56.1 ¶ 87, Pl.'s 56.1 Resp. to City ¶ 6.) As evidence, Jackson points out that in more than 15 years with the City, he has only been asked to act up in the Foreman position on approximately 13 occasions (once for four days, once for three days, and then only for one day intervals). (Jackson Dep. at 12-16, Ex. 17 to Pl.'s 56.1.) Furthermore, when Jackson has been appointed to act up, he was not required to supervise anyone, and wound up "watching the tools." (Id. at 13.) He did not receive the higher Foreman salary when he acted up. (Id. at 13-14.)

On the other hand, within two years of being hired by the City, Capecci was asked to act up as Foreman. (Capecci Dep. at 13, Ex. 16 to Pl.'s 56.1.) Prior to his selection as Foreman in 1997, he had served as acting Foreman at various times and for various lengths — as long as a couple of months in at least one case. (Id. at 9.) Capecci testified during his May 17, 2002 deposition that he currently serves as acting Foreman. (Id. at 7.)

Plaintiff submitted additional evidence regarding the City's acting up procedures. Harold Tabor, an African-American Foreman for the City, stated that he has not been asked to act up in positions for which he was qualified while less qualified, white employees with less seniority were given acting up opportunities. (Tabor Aff. ¶ 14, Ex. 61 to Pl.'s 56.1.) Although he is qualified, he has never been asked to act up as General Foreman, and he has been repeatedly passed over for promotion while white employees with less seniority, training and experience have been promoted. (Id. ¶¶ 13, 14.) According to Tabor, since Stan Kaderbek became the Commissioner for the Department of Transportation, he has consistently assigned white individuals to act up even where those individuals did not meet the minimum qualifications for the position into which they were promoted. (Id. ¶ 15.) Tabor has applied for positions for which he met the minimum qualifications and had more seniority than white applicants, and yet Kaderbek promoted white applicants who had been selected to act up. (Id. ¶ 16.)

Mickey R. Grayson, another African-American carpenter for the City, stated that he also has been passed over for acting up opportunities in favor of less qualified white employees with less seniority. (Grayson Aff. ¶ 30, Ex. 35 to Pl.'s 56.1.) Grayson has filed several grievances and EEOC complaints, and an unsuccessful federal lawsuit, arguing that City supervisors routinely select less qualified, less experienced white carpenters to act up in positions when more qualified, more experienced African-American employees with more seniority were also available. (Id. ¶ 31.) He stated that in some instances, after a white employee had been acting up for a period, the City then permanently promoted that person into the position. (Id.) Grayson claims that when Kaderbek asked Donald "Donny" McCarthy, a white employee, to act up as General Foreman of Carpenters in 1997, Grayson was not invited to fill the position, even though he was more qualified than McCarthy. (Id. ¶¶ 34-35.)

II. Jackson's 1997 Grievance

On July 22, 1997, Jackson, along with two other rejected African-American applicants for the Foreman position, Wyman Payne and George Webster, filed grievances against the City through the Union under the applicable section of the CBA, claiming that the City had not selected the most qualified individual for the job. (City's 56.1 ¶ 12.) The Union pursued these grievances to arbitration, arguing that all three of the grievants were more qualified than Capecci for the Foreman position. (Union's 56.1 ¶ 10.)

On April 19, 1999, the arbitrator, Peter Meyers, ruled that the City had violated the CBA by promoting Capecci because he was not the most qualified individual for the job, and ordered the City to demote Capecci and promote Webster, whom he deemed to be the most qualified of the three grievants. (City's 56.1 ¶ 13.) Meyers concluded that Capecci did not even meet the minimum qualifications for the Foreman position. (Arbitration Decision of April 19, 1999 at 29, Ex. F to City's 56.1.) Meyers found that Scalise and Jones gave Capecci a higher rating in his interview than they gave the other grievants because Capecci had been allowed to act up in the Foreman position. (Id. at 29.) Jackson contends that the arbitrator additionally ruled that he was more qualified than Capecci, but the text of Meyers' ruling states only that "perhaps all three Grievants . . . should have received ratings that were equal to or higher than whatever Capecci received . . ." (Id. at 31.) Although Meyers concluded that the ratings system used to choose Capecci was arbitrary, he then applied that same system and determined that Webster should be promoted to the Foreman position. (Id. at 12-13, 31-32.) Jackson denies that Webster is more qualified than he is, and suggests his rating was lower than it should have been due to Meyers' consideration of a disciplinary action the City brought against Jackson in 1994.*fn7 (Pl.'s Resp. to Union's 56.1 ¶ 13.)

After the arbitrator ruled on the case, the City demoted Capecci back to the position of carpenter. (Capecci Dep. at 13, Ex. 16 to Pl.'s 56.1.) Two weeks later, however, Capecci was asked to serve as acting Foreman, and he ...

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