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March 31, 2003


The opinion of the court was delivered by: Joan B. Gottschall, United States District Judge


Plaintiff Willie E. Sutton brings this action against his employer, the Illinois Department of Transportation ("IDOT") pursuant to 42 U.S.C. § 2000e, et seq. ("Title VII") alleging that he was discriminated against because of his race, was subjected to a "hostile work environment," and was retaliated against because of his complaints of race discrimination. IDOT has moved for summary judgment on all counts. For the reasons explained below, IDOT's motion for summary judgment is granted. IDOT's motion to strike portions of plaintiff's response to defendant's statement of facts is granted in part and denied in part.


Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). The moving party has the initial burden to prove that no genuine issue of material fact exists. Matsushita Elec. Indust. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Once the moving party shows that there is no genuine issue of material fact, the burden shifts to the nonmoving party to designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

The Second Amended Complaint ("Complaint") in this case contains two counts: Count I, "Discrimination Based Upon Race" and Count II, "Discrimination Based Upon Race — retaliation." Defendant has moved for summary judgment arguing:

1. Sutton's allegations of incidents occurring prior to November 13, 1996, are barred by Title VII's 300-day limitation period.

2. Sutton cannot establish a prima facie case of discrimination or retaliation because he cannot establish discrimination by direct evidence and cannot establish a prima facie case under McDonneliDouglas because he can establish neither an adverse action nor that non-black employees were treated better than he was.

3. Sutton cannot establish a prima facie case of a racially hostile environment because the incidents relied on by Sutton are insufficient to meet the test for a racially hostile environment, and, even if Sutton was subjected to a racially-hostile work environment, the perpetrator, Vince LaRusso, was Sutton's coworker and not his supervisor, some of LaRusso's statements were made outside the 300-day limitation period and Sutton cannot establish that IDOT was negligent in failing to discover or remedy the alleged harassment.

4. Sutton cannot establish a prima facie case of retaliation because he was not subject to an adverse action and because he cannot establish that any non-protected employees were treated more favorably than he was.*fn1

Sutton's Complaint collapses the two distinctly different bases for recovery, discrimination based on discrete acts and discrimination based on a hostile work environment claims. See Nat'l R.R. Pass. Corp. v. Morgan, 122 S.Ct. 2061, 2073 (2002). The analysis of plaintiffs evidence is distinctly different depending on plaintiffs theory of recovery. The 300-day limitation of Title VII is irrelevant to a hostile environment claim, as long as plaintiff filed his charge within 300 days of the occurrence of any act that is part of his hostile work environment claim. Id. at 2075. Defendant's statute of limitations argument is thus irrelevant to plaintiffs hostile environment claim, as is defendant's contention that plaintiff has failed to allege an adverse action, since in a claim of hostile work environment, it is the entire pattern of conduct, not any single act, that is the focus of the claim.

Discrimination Based on Race — Non-Hostile Work Environment Claim*fn2

The court will first look at defendant's adverse action argument to see if plaintiff has any evidence that would permit him to go forward on a discrete act discrimination claim. Plaintiff lists many allegedly "discriminatory" acts, but he makes little or no attempt to identify adverse actions within the meaning of the law. An adverse employment action is ""a materially adverse change in the terms and conditions of employment [that is] more disruptive than a mere inconvenience or an alteration of job responsibilities."' Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000) (quoting Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). Adverse actions include terminations of employment, demotions, salary decreases and conditions of employment that are designed to harass and humiliate. Id. The law is clear that negative performance evaluations, standing alone, do not constitute adverse actions. Smart v. Ball State Univ., 89 F.3d 437, 442 (7th Cir. 1996).

Among Sutton's claims of discriminatory acts are many, such as the use of racially derogatory terms, which could form part of a pattern of harassment, but which are not alterations in the terms or conditions of his employment such that they are actionable standing alone. of the allegedly discriminatory acts which he lists, only four appear to the court to be even arguably adverse actions of this sort: verbal reprimands on January 7 and January 4, 1999, and a write-up on February 8, 1999. In addition, plaintiff has alleged that he was forced to patch potholes in a dangerous location because of his race.

With respect to the write-ups and reprimands, Sutton has not offered evidence that these incidents implicated sufficiently tangible job consequences to constitute an independent basis for liability. Qest v. Ill. Dep't of Corr., 240 F.3d 605, 613 (7th Cir. 2001). In Qest, the Seventh Circuit ruled that such job-related criticisms were insufficient to constitute adverse actions even though they led to the plaintiffs termination. In the case at bar, the alleged criticisms led to no tangible job consequences at all. To the extent plaintiff seeks to hold defendant liable for each of these criticisms, each claim is dismissed and defendant's motion for summary judgment is granted.

With respect to plaintiffs pothole-patching claim, the court believes that requiring an employee to carry out an assignment which puts him at undue physical risk based on racial animus could, in some circumstances, constitute an actionable act of discrimination. Plaintiff alleges that on two occasions, March 11, 1998 and December 6, 1996, he was directed to patch potholes in an unprotected line of traffic, an assignment that plaintiff "did not observe being given to white workers." (Pl.'s Statement of Additional Facts ("Additional Fact"), ¶ 4.) What plaintiff observed, however, is meaningless in the face of undisputed evidence that a white worker, Bachmeier, was also directed to patch potholes in an exposed lane and did so. (Pl's Rule 56.1 Response, ¶ 32.) Moreover, plaintiff admits that two other white workers were directed to patch potholes in exposed traffic, although both refused the assignment. (Id. at ¶¶ 33, 34.) Plaintiff cannot show, and he need not, what, if anything, would have happened to him if he, like these two white workers, had refused to carry out the assignment, but the fact that three white workers were given the assignment, and one performed it, weakens, probably fatally, the allegation that the assignment was racially motivated. Given that plaintiff was directed to do this work on only two occasions spaced years apart, given that he was not injured despite the risks of the work and has claimed no specific injury or damages arising from this incident, given that a white employee did the same work and given that two other white employees were directed to do the work but failed to do it, this is too weak a reed on which to rest an independent claim of discrimination.

Plaintiff has not come forward with evidence of an independently actionable adverse action. Accordingly, the court need not reach defendant's arguments that any claimed adverse actions are outside the statute of limitations. Defendant's motion for summary judgment on plaintiffs claim of race discrimination independent of his hostile ...

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