United States District Court, N.D. Illinois
February 11, 2004.
JOHN McGEE and THOMAS MALONE, Plaintiffs
ILLINOIS DEPARTMENT OF TRANSPORTATION, KENNETH CHLEBICKI, DENNIS MAHONEY, and JOHN KOS, Defendants
The opinion of the court was delivered by: SIDNEY SCHENKIER, Magistrate Judge
MEMORANDUM OPINION AND ORDER
The defendants in this employment discrimination case, the Illinois
Department of Transportation ("IDOT") and individual defendants Kenneth
Chlebicki, Dennis Mahoney, and John Kos, have filed a motion seeking
summary judgment on all four counts of the complaint filed by plaintiffs,
John McGee and Thomas Malone. In Counts I and II, alleged against IDOT
and the individual defendants, (Mr. Kos is a District Engineer, Mr.
Mahoney is a Yard Tech at Kennedy, and Mr. Chlebicki is a Yard Tech at
Stevenson), plaintiffs assert claims of racial harassment and retaliation
in violation of 42 U.S.C. § 1981, and 1983. In Counts III and IV,
plaintiffs assert violations of Title VII of the Civil Rights Act,
42 U.S.C. § 2000e et seq. against IDOT.
On August 28, 2003, this Court, in response to a motion filed by the
plaintiffs, under Fed.R.Civ.P. 43(e), directed the parties to submit
only Local Rule 56 statements in connection with the motion for summary
judgment. Briefing on the motion was deferred until the Court could
determine whether the Rule 56 statements disclosed genuine issues of
material fact that precluded summary judgment and made briefing
unnecessary. These Rule 56 statements have been submitted. In
addition, the defendants have filed a motion to strike certain fact
statements submitted by the plaintiffs in their Rule 56.1(b)(3) Statement
of Additional Facts; that motion is fully briefed.
After careful review, the Court finds that the defendants' motion for
summary judgment should be denied on all counts as to IDOT, Mr. Chlebicki
and Mr. Mahoney. The Court reserves ruling on the motion for summary
judgment as to Mr. Kos, pending further briefing. The motion to strike is
moot, because genuine issues of material fact exist which preclude
summary judgment on all counts of plaintiff's complaint that are not the
subject of the motion to strike.*fn1
We begin with a brief summary of the governing legal standards. Title
VII makes it unlawful for an employer "to discriminate against any
individual with respect to his [or her] 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), Section
1981 claims are governed by the same standards as Title VII,
42 U.S.C. § 2000e et seq., and protect individuals against "racial
harassment on the job and other forms of discrimination occurring after
the formation of a contract." Harden v. S. C. Johnson & Son
Inc., 167 F.3d 340, 346 (7th Cir. 1999). Section 1983 provides a
remedy against "any person," who "under color of law" deprives another of
the rights protected by the Constitution. Collins v. City of Marker
Heights, 503 U.S. 115, 120 (1992). Although the plaintiffs do not
specify in their complaint the specific constitutional provision
associated with their Section 1983 claim, their cause of action for
disparate treatment and creation of a hostile work environment falls
within the scope of behavior in violation of the Equal Protection Clause
of the Fourteenth Amendment.
Williams v. Seniff, 342 F.3d 774, 787-88 (7th Cir. 2003).
The standards for proving the disparate treatment Title VII violation
therefore apply to the plaintiffs' Section 1983 equal protection claim,
If a plaintiff fails to prove a Title VII violation, then any section
1981 and 1983 claims also fail.
Because only one genuinely disputed issue of material fact on each
claim is necessary to defeat summary judgment, the Court need not set out
every genuine dispute in detail. Accordingly, the Court will briefly set
forth the elements of a Title VII claim and then outline some (but not
all) of the genuinely disputed and material facts that exist regarding
those elements for all claims and all defendants, except for Mr.
To prove a Title VII violation, plaintiffs must first establish a
prima facie case for intentional discrimination by proving four
elements: (1) they are members of a protected class; (2) they performed
their jobs satisfactorily; (3) they suffered adverse employment action;
and (4) the defendant treated similarly situated, non-minority employees
more favorably. Simpson v. Borg-Warner Automotive, Inc.,
196 F.3d 873, 876 (7th Cir. 1999). The defendants admit that the plaintiffs
can prove the first two elements of the prima facie case, as to
plaintiff Malone, and at least the first element as to plaintiff McGee.
It is the last two elements (adverse employment action and similarly
situated treatment) that are disputed regarding Mr. Malone, and the last
three elements (satisfactory job performance, adverse employment action
and similarly situated treatment) that are disputed as
to Mr. McGee, not only for the Title VII claims in Counts III and
IV of the complaint, but also for the "intentional discrimination"
element of the Sections 1981 and 1983 claims in Counts I and II,
Regarding IDOT, the plaintiffs identify several genuine issues of
material fact, For example, there are genuine disputes regarding whether
IDOT complied with the non-retaliation and equal treatment provisions
(Defendants' Rule 56.1 St. "Defs.' 56.1 St." ¶¶ (18-22; Pls.'
Rule 56.1 Resp. ¶¶ 18-22; Defs.' 56.1 St. ¶¶ 442-444). In particular,
the plaintiffs claim that IDOT is liable for the harassment by Messrs.
Chlebicki and Mahoney because they are alleged "supervisors" of McGee and
Mahoney, respectively. Supervisory status, however, is a question of fact
as to Chlebicki and Mahoney. Moreover, even if Chlebicki and Mahoney are
not supervisors, but are merely co-workers of the plaintiffs, there are
still genuinely disputed questions regarding whether IDOT had notice of
the alleged discrimination and an opportunity to correct it, but then
"failed to exercise reasonable care in doing so." Mason v. S. Ill.
University, 233 F.3d 1036, 1043 & n.4 (7th Cir. 2000).
There are also genuine disputes of material fact regarding the specific
complaints of each plaintiff. We will begin with Mr. McGee's allegations.
Mr. McGee alleges that his working conditions were intolerable, forcing
him to retire (a constructive discharge theory). Specifically, Mr. McGee
alleges that when he arrived at the Stevenson Yard, he was not given
proper resources to do his job; namely, an office, desk or phone, and was
not given access to the yard's computer (Defs.' 56.1 St. ¶¶ 274-79;
Pls.' Resp. ¶¶ 274-79;
Pls.' Add'l Facts ¶¶ 63-69 (office space); 70 (stickers), 71-73
(email); 74-76 (Yard); Defs.' Resp. to Add'l Facts ¶¶ 63-69; 70,
71-73; 74-76). The defendants deny that Mr. McGee's working conditions
were harassing or retaliatory (Pls.' 56.1 Resp. ¶ 274-79); they also
deny that Mr. McGee's complaints went unanswered (Pls.' 56.1 Resp. ¶
280-283). Mr. McGee also alleges retaliation and harassment based on Lead
Lead Worker ("LLW") Petrie's actions. Mr. McGee alleges that Mr. Petrie
would check on his crew more often than others to "intimidate them"
because of Mr. McGee's race (Pl.'s 56.1 Resp. ¶¶ 295-99). The
defendants deny that Mr. Petrie was watching the crew for discriminatory
reasons, or was doing so under orders from Mr. Chlebicki, the Yard Tech
in the Stevenson Yard (Defs.' 56.1 St. ¶¶ 51-53; Pl.'s Resp. ¶¶
Regarding the issue of intentional discrimination, there are other job
duty disputes related to the disparate treatment of Mr. McGee, a Lead
Worker ("LW"), by various supervisors (namely, Mr. Chlebicki, the Yard
Tech, and Mr. Petrie, the LLW) (Defs.' 56.1 St. ¶¶ 300-302; ¶¶
316-18 (port-a-potty incident or "PPI"); Pl.'s 56.1 Resp. ¶¶ 300-02;
¶¶ 316-18 (PPI); Defs.' 56.1 St. ¶¶ 351; Pls.' 56.1 Resp. ¶ 351
(Krasnow confrontation); Defs.' 56.1 St. ¶¶ 366-370; Pls.' Resp. ¶
366-70 (lane closure); Defs.' 56.1 St. ¶¶ 387-97; ¶¶ 402-05; Pls.'
56.1 Resp. ¶¶ 387-97; ¶¶ 402-05 (co-worker harassment); 11)
398-401 (snowbirds); Defs.' 56.1 St. ¶¶ 402-05; Pls.' 56.1 Resp.
¶¶ 402-05 (lane-blocking incident); Defs.' 56.1 St. ¶ 406-09;
Pls.' 56.1 St. ¶¶ 406-09 (rumors and mistreatment); Defs.' 56.1 So.
¶¶ 411-12; 416-422; Pls.' 56.1 Resp. ¶¶ 411-12; ¶¶ 416-422
(McGee's job performance/Jenkins Review); Pls.' Add'l Facts ¶¶ 81-84
(Chlebicki harassment); 86-88 (Chlebicki hostility); 105-110 (Janeteas
harassment); Defs.' Resp. to Add'l Facts ¶¶ (11 81-84; 86-88;
105-110). Finally, there is a genuine dispute about what the duties of
an LW are and whether Mr. McGee was performing those duties (Defs.'
56.1 St. ¶¶ 63-64; Pls.' 56.1 Resp. ¶¶ 63-64).
There are similar genuine disputes of material fact alleged by Mr.
Malone. Mr. Malone was promoted to the position of HCEO at the Kennedy
Yard in September 2000, under the Massie consent decree (Defs.'
56.1 St. ¶¶ 94-96). The parties dispute the responsibilities expected
of Kennedy Yard employees (Defs.' 56.1 St. ¶¶ 99-102; Pls.' 56.1 Resp.
¶¶ 99-102). There are also genuine disputes regarding the terms and
conditions of Mr. Malone's employment, namely, the working conditions;
and, these facts go to the issue of intent under Title VII and §§ 1981
and 1983, Defs.' 56.1 St. ¶¶ 129-134; Pls.' 56.1 Resp. ¶¶ 129-34)
(damage to truck/write up); Defs.' 56.1 St. ¶¶ 146-55; Pls.' 56.1
Resp. ¶¶ 146-55 (salt dome damage); Defs.' 56.1 St. ¶¶
164-66; Pls.' 56.1 Resp. ¶ 164-66 (snowblower incident); Defs.' 56.1
St. ¶¶ 167-69; Pls.' 56.1 Resp. ¶¶ 167-69 (snowblower damage)). In
addition, Mr. Malone alleges acts of disparate treatment by Mr. Mahoney
from August through September 2002 (Defs.' St. 56.1 ¶¶ 183-85; Pls.'
56.1 Resp. ¶¶ 183-88 (checking up on him); Defs.' 56.1 St. ¶¶
189-99; Pls.' 56.1 Resp. ¶¶ 189-99 (undesirable work
assignments); Defs.' 56.1 St. ¶ 215; Pls.' 56.1 Resp. ¶ 215
(criticism); Defs.' 56.1 St. ¶¶ 216-224; Pls.' 56.1 Resp. ¶¶
216-224 (rotation list posting); Defs.' 56.1 St. ¶¶ 225-226
(discipline); Defs.' 56.1 Facts (racial slurs); Pls.' 56.1 Resp. ¶¶
225-26; 257; Pls.' Add'l Facts ¶¶ 180-84 (lack of HCEO duties); ¶¶
190-92 (Mahoney disparate treatment); 193-95 (failure to post acting LW
list); Defs.' Resp. to Add'l Facts ¶¶ 180-84; 190-92; 193-95).
Finally, the parties dispute Mr. Malone's allegation that IDOT, as a
defendant, discriminated against him with respect to his complaints
(Defs.' 56.1 St. mi 247-53; Pls.' 56.1 Resp. ¶¶ 247-53).
With respect to the individual defendants' claim of qualified immunity,
the Court denies the defendants' motion for summary judgment. The
defendants concede that the constitutional rights at stake were clearly
established at the time of the alleged conduct, but they argue that "the
conduct complained of in this case does not rise to that which
constitutes impermissible conduct" (Defs.' Mem. at 25). That argument
goes to the merits of the substantive claims in the case; it is not a
qualified immunity question. See Vidmar v. City of Chicago
Board of Education, No. 98 C 0951, 1999 WL 409929, *3-4 and n.4
(N.D. Ill. June 7, 1999) (court denied motion to stay pending
interlocutory appeal of qualified immunity determination; issue whether
defendant acted without any racial animus was inappropriate as a
qualified immunity defense because such a claim is a factual defense on
the merits). The determination of qualified immunity is premised on an
admission that certain constitutional rights were violated and asks
(inter alia) whether, in spite of the violation, immunity is
warranted because the rights were not "clearly established" at the time
of the alleged conduct. This is not the defendants' position; here, the
defendants' position is the exact opposite. Because the facts that must
determine whether the defendants conduct rises to the level that
"constitutes impermissible conduct" are genuinely in dispute, for the
reasons summarized in this opinion, defendants' motion for summary
judgment on the issue of qualified immunity is denied.