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McGEE v. ILLINOIS DEPT. OF TRANSPORTATION

February 11, 2004.

JOHN McGEE and THOMAS MALONE, Plaintiffs
v.
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 Page 2 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

  II.

  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. Page 3 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.

  II.

  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. Kos.*fn2

  A.

  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 Page 4 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, respectively.

  B.

  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).

  C.

  There are also genuine disputes of material fact regarding the specific complaints of each plaintiff. We will ...


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