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 ...