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BAUCOM v. CITY OF DES PLAINES

June 6, 2003

TAMARA BAUCOM, PLAINTIFF,
v.
CITY OF DES PLAINES, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Tamara Baucom ("Baucom" or "Plaintiff") worked as a civil engineer for the Defendant, City of Des Plaines ("City" or "Defendant") from 1988 until she was terminated on November 8, 2000. (Complaint ¶¶ 4, 6; Def's 56.1 ¶ 9; City of Des Plaines Civil Service Commission, Ex. D to Def's 56.1.) Defendant contends that Baucom was fired because she improperly and without authority returned checks to homeowners who paid the City to complete work on their private property, and subsequently lied to her superiors about her actions. Baucom admits that she returned the checks, but claims that she had authority to do so, and alleges that the real reason she was terminated was because she is a Jewish woman. She now brings this Title VII action against the City, alleging that she was fired because of her sex (Count I) and religion (Count II). For the following reasons, the court grants the City's motion for summary judgment on both counts.

FACTUAL BACKGROUND

For the purposes of reviewing a summary judgment motion, the court reviews the record, viewing all facts and drawing all reasonable inferences in the plaintiff's favor. Haywood v. Lucent Technologies, Inc., 323 F.3d 524, 529 (7th Cir. 2003). The following facts are taken from the parties' Rule 56.1 Statements and Responses, as well as other evidence in the record.

Tamara Baucom is a Jewish woman who was terminated from her position as civil engineer for the City of Des Plaines, Illinois, on November 8, 2000. (Plaintiff's Statement of Additional Facts Pursuant to Local Rule 56.1(a)(3), hereinafter "Pl's 56.1," ¶ 8.) Baucom's direct supervisor in the City's Engineering Department was Larry Kaszuba, Senior Civil Engineer for the City. (Pl's 56.1 4, 5.) Kaszuba was second in command in the Department to the City Engineer, Tim Oakley. (Pl's 56.1 ¶¶ 2, 4.) Oakley, but not Kaszuba, had the authority to terminate Baucom from her job. (Oakley Deposition., at 111, Ex. 19 to Defendant's Statement of Material Facts in Support of Summary Judgment, hereinafter "Def's 56.1.")

Baucom performed well during her 12 year tenure with the City. In fact, Oakley testified in his deposition that she was the City's "best" field person. (Plaintiff's Response to Def's 56.1, hereinafter "Pl's Resp. to Def's 56.1," ¶ 35.) In her last performance evaluation before her termination, dated February 29, 2000, Baucom received a score of 7.22 out of a possible 8 points, an excellent rating. (Baucom Performance Appraisal 2/29/00, Ex. 5 to Def's 56.1; Kaszuba Deposition, at 86, Ex. 18 to Def's 56.1.) Kaszuba stated that Baucom's position often required her to rely on what he considered to be her good judgment, and he felt that she could handle greater responsibility than other City engineers. (Kaszuba Dep., at 171, Ex. C to Pl's 56.1.) On one occasion approximately nine years before her termination, however, Baucom was reprimanded and suspended from work for one day because she lied to Oakley by saying she had followed his order to take a fellow engineer with her to the field, when in fact she had not. (Letter from Oakley to Baucom of February 2, 1992, Ex. 15 to Def's 56.1.) The termination notice Oakley delivered to Baucom in 2000 referenced the 1992 incident as a factor in her dismissal. (Termination Notice, Ex. I to Def's 56.1.)

A. Events Leading to Baucom's Termination

The court has had some difficulty in chronicling the events leading to Baucom's termination because dates were not always included in the record. In 1999, the City undertook street rehabilitation projects on a number of streets as a part of the 1999 CIP Contract B.*fn1 Under the contract, Baucom was the City's Resident Engineer for three streets, including Webster Lane. (Def's 56.1 ¶ 22.) At some point in 1999 or 2000, while Baucom was the Resident Engineer for Webster Lane, two homeowners on that street, Mrs. Mueller and Mrs. DePasquale,*fn2 requested that City engineers perform extra-contractual work on their property. (Letter from Oakley to Baucom of Nov. 8, 2000, Ex. I to Def's 56.1; Memorandum from Kaszuba to Jim Egeberg, City Finance Department of July 26, 1999, Ex. 10 to Def's 56.1.) Specifically, both residents requested that driveway aprons be constructed between the curb and sidewalk in front of their homes. (Baucom Dep., at 111, Ex. 17 to Def's 56.1.)

Apparently requests of this nature were not uncommon. In 1999 and 2000, the following procedures were in place with regard to such requests (the City has since revised its procedures).*fn3 When a resident requested extra work done on his property, a written agreement would typically be entered into between the property owner and the Resident Engineer responsible for the particular construction project, with the cost determined by "Contract Unit Prices."*fn4 (Memorandum from Kaszuba to Jim Egeberg, City Finance Department of July 26, 1999, Ex. 10 to Def's 56.1.) The homeowner would then issue a check to the Resident Engineer to cover the extra work. The Resident Engineer would submit the check and agreement to the Engineering Department for further processing. (Pl's Resp. to Def's 56.1 ¶ 96.) Larry Kaszuba would then prepare a memorandum for the City's Finance Department explaining the nature of the extra work, and send the check to the Finance Department.*fn5 (Def's 56.1 ¶ 118.) Copies of the agreements were kept in the Engineering Department files. (Def's 56.1 ¶ 120.)

Baucom entered into agreements with Mueller and DePasquale, but she was fired after it was discovered that she returned their checks, and that the homeowners had their work done for free. This came to light in the fall of 2000, when (the record does not clarify the exact dates), Gloria Keane, a Des Plaines resident, placed several telephone calls to City employees and filed requests for information about the Webster Lane residents. Keane filed two Freedom of Information Act ("FOIA") requests with the Engineering Department, the first on September 1, 2000, and the second on September 19, 2000, seeking information about the returned checks. (Sergeant Terry McAllister's Letter to Keane of September 12, 2000, Ex. 11 to Def's 56.1; McAllister Letter to Keane of September 27, 2000, Ex. 12 to Def's 56.1.) On an unspecified date, Keane called Oakley and informed him that two residents who were supposed to pay for improvements to their property had been given back the checks they wrote to the City. (Pl's Resp. to Def's 56.1 ¶ 41.) This was the first Oakley heard about the incident. (Id. ¶ 42.)

On or about September 18, 2000, Keane spoke with Kaszuba by phone and expressed concern that some Des Plaines residents had work on their private property done by city contractors for free. (Kaszuba Dep., at 110, Ex. 18 to Def's 56.1.) Keane identified at least two addresses on Webster Lane: 2016 and 2024, Mueller and DePasquale's addresses, respectively. Keane said she was not sure who returned their checks. Kaszuba told Oakley about the call, and Oakley directed him to inform the City Attorney, David Wiltse. (Kaszuba Dep., at 113, Ex. 18 to Def's 56.1.) Kaszuba wrote an email to Wiltse on September 19, 2000, in which he described his conversation with Keane and wrote "I assured [Keane] that repayment did not come from yours truly, either personally or in connection with my employment." (Email from Kaszuba to Wiltse of Sept. 19, 2000, Ex. 9 to Def's 56.1.)

Keane also called F. Wallace Douthwaite, the Des Plaines City Manager, to complain about the returned checks (the date of the call is unknown). (Douthwaite Arbitration Hearing Testimony, at 89, Ex. 22(B) to Def's 56.1.) This was the first Douthwaite heard of the alleged impropriety. (Pl's Resp. to Def's 56.1 ¶ 149.)

Oakley told Baucom about his conversation with Keane, and asked her if she had returned the checks to the Webster Lane individuals. Baucom told Oakley that she did not remember doing so. (Baucom's Defense for Pre-Disciplinary Hearing Proceedings, hereinafter "Baucom Defense", at 1, Ex. 8 to Def's 56.1.) Several days later (the exact date is unknown), Douthwaite also confronted Baucom, and she told him she did not recall returning the checks. (Id.) Baucom states that sometime shortly thereafter, she did remember returning the checks to the two homeowners, but did not seek out any City official to correct her earlier statements. (Id.) Baucom admits this showed poor judgment on her part. (Baucom Dep., at 258, Ex. 17 to Def's 56.1.) Baucom explains that she returned the checks to the two residents of Webster Lane because they experienced gas breaks on their adjoining property, and therefore she used her discretion to return their money.*fn6 (Id. at 268.)

Baucom's story differs from the one gleaned by City employees who initiated an investigation in response to Keane's FOIA requests and phone calls. Anjannette Brzezinski, a secretary in the Engineering Department, stated that during this internal investigation, Kaszuba found a memorandum he had produced on his personal computer, memorializing an agreement for performance of this extra-contractual work on Webster Lane. The document was created on July 26, 1999 for the purpose of transmitting the checks from the Webster Lane residents to Jim Egeberg of the Finance Department. (Kaszuba Memo to Finance Dept., Ex. 10 to Def's 56.1; Pl's Resp. to Def's 56.1 ¶ 119.) The memorandum recounted the property owners' request, while the 1999 CIP Contract B was underway, to pay for construction not included in the project as awarded. Kaszuba wrote that the homeowners had agreed to pay 100% of the extra work at "Contract Unit Prices," and that copies of the written agreements were in the Engineering Department's files. The memorandum reflects that the total charges to the two residents was $2,615.50 ($1,680.50 was charged to Mueller; $935.00 to DePasquale). (Id.) Brzezinski never found a hard copy of the memo although she looked through the files at the Engineering Department.*fn7 (Brzezinski Dep., at 82, Ex. 21 to Def's 56.1.) Brzezinski looked for the agreements referenced in the memorandum, but never found those, either, although she testified that it was standard practice to keep such agreements in the Department files. (Id. at 83, 88.) Brzezinski asked Baucom whether she knew where the files were but Baucom replied that she did not (the date of this conversation is not in the record). (Id. at 86.)

Sometime after Keane submitted her FOIA requests (again, the exact date is not in the record), City Manager Douthwaite contacted the Des Plaines Police Department and asked Officer David Hackmeister to investigate the matter. (Pl's Resp. to Def's 56.1 ¶¶ 21, 150; Def's 56.1 ¶ 46.) Hackmeister and Sergeant Terry McAllister interviewed Mueller at her home at 2016 Webster Lane. In a memorandum to Police Chief Jim Ryan, Hackmeister described Mueller as evasive. (Memorandum from Hackmeister to Ryan of Oct. 27, 2000, hereinafter "Hackmeister Memo," Ex. 13 to Def's 56.1.) She told the officers, however, that some time after the work was completed on her driveway, the check that she had submitted to the City was returned to her mailbox. It had not been cashed and she told the officers she did not inquire as to why the check was returned or who returned it. (Id.)

DePasquale, the resident in 2024 Webster Lane, was more forthcoming. On October 13, 2000, she told the officers that she was given the opportunity to upgrade her driveway and decided to do so, for which she submitted a personal check to an employee of the Engineering Department.*fn8 (Id.) After the work on her driveway was complete, DePasquale heard from neighbors that others in the neighborhood had similar upgrade work done and were not required to pay for it. She called her alderman (Carla Brookman), who told DePasquale she would see if there was anything she could do. DePasquale told Hackmeister and McAllister that a day or two later, an Engineering Department employee (later identified as Baucom) came to her home and returned the uncashed check to her. (Id.) DePasquale told the officers that Baucom informed her that she was lucky because the check had not yet been processed, and she went on to tell DePasquale that this was the Department's last job of the year, and because next year's homeowners would not be required to pay for these types of improvements, the City was returning her check. DePasquale told the officers that Baucom then walked to 2016 Webster Lane and put something in that mailbox. (Id.)

Hackmeister and McAllister interviewed Baucom on October 18, 2000. (Id.) In his memorandum, Hackmeister reported that Baucom admitted that she returned the two checks to Des Plaines residents (the record does not indicate the date on which Baucom returned the checks), and explained to the officers that she did so because of the inconvenience caused by a gas leak on the residents' adjoining properties.*fn9 (Hackmeister Memo; Def's 56.1 ¶¶ 23, 26.) Baucom told the officers that she advised DePasquale that the checks were being returned because of the inconvenience, and that she returned both checks to DePasquale because Mueller was not at home. (Hackmeister Memo.)

On October 18 and 24, 2000, Hackmeister contacted the local gas company, Nicor, and learned that no gas leak or any gas problem on Webster Lane had been reported around the time when Baucom returned the checks.*fn10 (Id.) Hackmeister interviewed Baucom a second time on October 26, 2000, this time with Police Chief Ryan. Baucom was advised prior to the meeting that she could have a union representative (Baucom belonged to the American Federation of State, County and Municipal Employees of the AFL-CIO) or an attorney present, but she did not elect to bring anyone. Hackmeister reported in his memorandum that during the interview, Baucom told the officers that "she made an error in judgment by returning the checks and by lying to Mr. Douthwaite, Mr. Oakley, and Mr. Kaszuba regarding the return of the checks." (Id.) She lamented that "it was a very bad decision on her part." (Id.) When advised that DePasquale knew nothing of a gas leak, Baucom responded that she and DePasquale must simply have remembered things differently. (Id.) When she was informed that Nicor had no records of a gas break, Baucom expressed her belief that the gas company does not keep accurate records. (Id.)

Based on the Police Department's report that Baucom had returned the checks and lied to her superiors about it, Douthwaite concluded that some discipline was appropriate. (Oakley Dep., at 93, Ex. 19 to Def's 56.1.) City Attorney Wiltse advised Oakley that a pre-disciplinary meeting should take place to determine Baucom's fate. (Id.) Accordingly, on November 1, 2000, Oakley issued Baucom a "Notice of Pre-Disciplinary Meeting," which informed her that City officials were contemplating disciplinary action against her, and were considering discharging her, for the return of the checks to the Webster Lane homeowners; lying to City employees; possible misstatements regarding the circumstances, including the existence of a gas leak; and the possible involvement of an elected official in the process of the return of the checks. (Memorandum from Oakley to Baucom of Nov. 1, 2000, Ex. H to Def's 56.1.) Baucom was also informed in the notice that she had the right to union representation at the meeting. (Id.)

The pre-disciplinary meeting took place on November 6, 2000, and Baucom brought a union representative. (Baucom Dep., at 366, Ex. 17 to Def's 56.1.) The record reflects neither the substance of the meeting nor its attendees, but the court understands that at minimum, Baucom, her union representative, Oakley, and Wiltse were present. (Oakley Dep., at 109.) Baucom submitted a four-page statement in her defense, which apparently mirrors the remarks she made during the November 6 meeting. In her memorandum, she related that when she was initially asked by Oakley and Douthwaite about the returned checks, she did not recall any such incident. When she later spoke with Jack Degan, the City's superintendent for the rehabilitation work, however,*fn11 he reminded her that she had returned the checks to residents on Webster, but told her that he thought it was because of a problem the residents experienced with utility services. (The record does not reflect how Degan knew about the incident.) Baucom stated that she was so overworked at the Department that it was not surprising that her memory of events was not totally clear. (Id.) She denied lying to anyone about the returned checks and denied having said anything to cover up for Alderman ...


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