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Sebastian v. City of Chicago

July 24, 2008

THOMAS SEBASTIAN, PLAINTIFF,
v.
CITY OF CHICAGO, DAN ALLEN, CHRIS KOZICKI, AND STAN-LEE KADERBEK, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Thomas Sebastian ("Sebastian" or "Plaintiff") filed suit against Defendants City of Chicago (the "City"), Dan Allen ("Allen"), Chris Kozicki ("Kozicki"), and Stan-Lee Kaderbek ("Kaderbek") (collectively "Defendants") under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 1983 ("§ 1983"), and 745 ILCS 10/9-102. Sebastian alleges that: (1) the City discriminated against him on the basis of his national origin and race in violation of Title VII; (2) the City retaliated against him in violation of Title VII; and (3) Defendants failed to promote him in violation of the First Amendment and § 1983. Sebastian seeks indemnification from the City on the § 1983 claim pursuant to 745 ILCS 10/9-102. All Defendants moved for summary judgment on all claims. For the reasons set forth below, Defendant Allen's Motion For Summary Judgment is granted with respect to Counts I and II and denied with respect to Count III. The City Defendants' Motion For Summary Judgment is granted with respect to Counts II and III and denied with respect to Counts I and IV. Finally, Sebastian's Motion to Strike portions of Defendants' reply pleadings is granted in part and denied in part consistent with this Opinion.

STATEMENT OF UNDISPUTED FACTS

Sebastian is an electrical sign inspector for the City's Electrical Bureau (the "EB Department") of the Department of Buildings (the "Department"), where he has worked since 1987.*fn1 (Pl. Resp. 56.1 ¶ 5.) Sebastian claims that he was qualified to be promoted to the position of a supervising electrical inspector and that he was passed over by other politically connected candidates due to his race, national origin, and because he was not politically active. Sebastian earned a Supervising Electrician's license in 1985, is a member of the International Brotherhood of Electrical Workers ("IBEW"), Local 134, and has over thirty years of experience in the electrical industry. (Allen Resp. 56.1 ¶¶ 1-2; City Defs. Resp. 56.1 ¶¶ 1-2; Pl. Resp. 56.1 ¶ 5.)

During his tenure with the EB Department, Sebastian held responsibility in several EB functions: field wiring inspections, electrical plan examination, court case team inspections, and electrical sign inspections. (Allen Resp. 56.1 ¶ 3; City Defs. Resp. 56.1 ¶ 3.) One of his previous supervisors, Rochester Bailey ("Bailey"), described Sebastian as: (1) an excellent inspector; (2) a specialist of the EB Department's switchboards and switchgears work; (3) excellent with the task of load calculations; (4) very knowledgeable with regard to the Electrical Code (the "Code"); and (5) one who was prompt, stayed late to finish jobs, and never refused assignments.*fn2 (Allen Resp. 56.1 ¶ 4; City Defs. Resp. 56.1 ¶ 4; Pl. 56.1 Resp., Ex. 4, Bailey Dep. 41-42, 69-70, 76-78, 130, 163.) In 1991 and 2004, Chief Electrical Inspector Timothy Cullerton ("Cullerton") and Deputy Commissioner Milt Patterson ("Patterson"), respectively, commended Sebastian for "consistently excellent" performance and a "high degree of professionalism." (Allen Resp. 56.1 ¶ 3; City Defs. Resp. 56.1 ¶ 3; Pl. 56.1 Resp. Ex. 1, Bid Application.) In 1994, Sebastian received a Commissioner's Special Service Award. (Allen Resp. 56.1 ¶ 3; City Defs. Resp. 56.1 ¶ 3.)

Stan-Lee Kaderbek

Kaderbek is a civil engineer who served as the Deputy Commissioner/Chief Engineer of the City's Department of Transportation Bureau of Bridges and Transit from 1993 through 2003. (Pl. Resp. 56.1 ¶ 70.) In August 2003, Kaderbek joined the City's Department of Transportation as the First Deputy Commissioner. In June 2004, he became the Commissioner of the Department of Buildings, where he was charged with the enforcement of the City's Building Code. (Id.) Kaderbek resigned as Commissioner in 2005.(Allen Resp. 56.1 ¶ 9; City Defs. Resp. 56.1 ¶ 9.) In 1996, Kaderbek volunteered to do political work. (Allen Resp. 56.1 ¶ 10; City Defs. Resp. 56.1 ¶ 10.) Kaderbek explained that he was interested in volunteering because, in predisciplinary hearings, employees would use the their political work as an excuse for inadequate performance. (Allen Resp. 56.1 ¶ 10; City Defs. Resp. 56.1 ¶ 10; Pl. 56.1 Resp., Ex. 20, 103-04.) Kaderbek thought it would help him to respond to employees because he could "look them straight in the face and say, you know what, I do it too and I still do my job." (Pl. 56.1 Resp., Ex. 20, 103-04.)

Chris Kozicki

Kozicki began his career as an assistant to family friend, 11th Ward Alderman Patrick Huels ("Huels"). (Allen Resp. 56.1 ¶ 8; City Defs. Resp. 56.1 ¶ 8; Pl. 56.1 Resp. Ex. 15, 20-22.) Kozicki worked as a volunteer for the 11th Ward Democratic organization and ultimately became a political coordinator for the 11th Ward where he organized and directed political volunteers. (Allen Resp. 56.1 ¶ 8; City Defs. Resp. 56.1 ¶ 8.) In 1993, Kozicki was appointed to work for Mayor Daley's brother, John Daley, who then recommended him to Mayor Daley's Chief of Staff for a position as assistant commissioner/project manager for the Department. (Allen Resp. 56.1 ¶ 8; City Defs. Resp. 56.1 ¶ 8.) Kozicki was appointed to an Assistant Commissioner position with the Department in 1995, appointed to a Deputy Commissioner position in the Department in 1997, and appointed to a Managing Deputy Commissioner in the Department of Buildings in 2003. (Pl. Resp. 56.1 ¶ 71; Allen Resp. 56.1 ¶ 8; City Defs. Resp. 56.1 ¶ 8.) As a Managing Deputy Commissioner under Kaderbek, Kozicki had the daily responsibility of ensuring the performance of inspections. (Pl. Resp. 56.1 ¶ 71.) In 2006, Kozicki became a Deputy Commissioner in the City's Department of Planning and Development. (Id.)

Dan Allen

Allen is the Chief Electrical Inspector of the EB Department and began working in the EB Department in 1980.*fn3 (Pl. Resp. 56.1 ¶ 4.) Prior to joining the EB Department, he had never been employed as a paid mechanic electrician. (Allen Resp. 56.1 ¶ 5; City Defs. Resp. 56.1 ¶ 5; Pl. 56.1 Resp., Ex. 8, Allen Dep. 21-26.) Allen subsequently applied for and was promoted to supervising electrical inspector in 2000 and to his current position in October 2003. (Pl. Resp. 56.1 ¶ 4.)

Allen is the brother of 38th Ward Alderman Thomas Allen ("Alderman Allen"). (Allen Resp. 56.1 ¶ 5; City Defs. Resp. 56.1 ¶ 5; Pl. 56.1 Resp. 7; Pl. 56.1 Resp. Ex. 10, Allen Dep. 60.) From 1994 to the present, Sebastian and his wife have received mailings at their home from "Citizens for Tom Allen," an organization that raises money for Alderman Allen's political campaigns. (Pl. Resp. 56.1 ¶¶ 6-7; Allen Resp. 56.1 ¶ 7; City Defs. Resp. 56.1 ¶ 7; Pl. 56.1 Resp. Ex. 12, Sebastian Dep. 24-38, 44-47, 221-23.) From 1994 through 2002, Sebastian donated to "Citizens for Tom Allen." (Pl. Resp. 56.1 ¶ 7; Allen Resp. 56.1 ¶ 7; City Defs. Resp. 56.1 ¶ 7.) When Sebastian first donated in 1994, he and Dan Allen were electrical inspectors in the EB Department. (Pl. Resp. 56.1 ¶ 7.)

Sebastian stated that Allen first asked him to provide political contributions to Alderman Allen's political campaigns in 1994 and that Sebastian continued to do so until 2003.*fn4 (Allen Resp. 56.1 ¶ 7; City Defs. Resp. 56.1 ¶ 7; Pl. 56.1 Resp. Ex. 12, Sebastian Dep. 24.) Sebastian further testified that, in 2001, one year after Allen became a supervising electrical inspector, Allen told him that his 2001 contribution to Alderman Allen's campaign was insufficient. (Allen Resp. 56.1 ¶ 7; City Defs. Resp. 56.1 ¶ 7; Pl. 56.1 Resp. Ex. 12, Sebastian Dep. 37-38.) As a result, Sebastian made a second contribution. (Allen Resp. 56.1 ¶ 7; City Defs. Resp. 56.1 ¶ 7; Pl. 56.1 Resp. Ex. 12, Sebastian Dep. 37-38.) In 2002, Sebastian donated to Alderman Allen's campaign and told Allen that he did not want to make any more political contributions to the campaign. (Allen Resp. 56.1 ¶ 7; City Defs. Resp. 56.1 ¶ 7; Pl. 56.1 Resp. Ex. 12, Sebastian Dep. 43-45.) According to Sebastian only, Allen then told Sebastian he was a "cheap Indian." (Allen Resp. 56.1 ¶ 7; City Defs. Resp. 56.1 ¶ 7; Pl. 56.1 Resp. Ex. 12, Sebastian Dep. 43-45.) Allen denies the conversation and maintains that he never solicited political contributions from Sebastian or any other City employee. (Allen Resp. 56.1 ¶ 7; City Defs. Resp. 56.1 ¶ 7; City Defs. 56.1 Resp., Allen Aff. ¶ 4.)

2004 Supervising Electrical Inspector Promotion

According to Kozicki, the Department used the following procedure to fill openings within the EB Department in 2004: (1) bid notices listing the minimum qualifications for the job were posted; (2) interested applicants bid on the job by submitting the required materials to the personnel department; (3) the personnel department determined if a particular candidate was qualified; (4) the Department obtained a list of qualified applicants; (5) the Department configured an interview panel; (6) the interview panel conducted the interviews; (7) the commissioner approved the recommended individuals; (8) the list went back to personnel; and (9) the final hires were sent to main personnel.

(Allen Resp. 56.1 ¶ 11; City Defs. Resp. 56.1 ¶ 11; Pl. 56.1 Resp., Ex. 15, Kozicki Dep. 182; Pl. 56.1 Resp., Ex. 20, Kaderbek Dep. 58-59; Allen 56.1 Resp., Ex. I, Kaderbek Dep. 70-75.) In addition, Kaderbek, as Commissioner of the Department, signed a form certifying that, to the best of his understanding, political considerations did not play a role in the hiring decision. (Allen Resp. 56.1 ¶ 11; City Defs. Resp. 56.1 ¶ 11; Pl. 56.1 Resp., Ex. 21, Shakman Referral List/Certification.) Kaderbek retained final decision-making authority for employment decisions made within the Department. (Allen Resp. 56.1 ¶ 11; City Defs. Resp. 56.1 ¶ 11.) He was not, however, authorized to set policies or procedures regarding the hiring and/or firing of City employees and had no role in determining who would be interviewed, which candidates were eligible for interview, or how candidates were evaluated. (Pl. Resp. 56.1 ¶ 81.) The City's Department of Human Resources was responsible for establishing hiring-related policies and procedures. (Id.)

In 2004, the EB Department posted three openings for supervising electrical inspectors. (Pl. Resp. 56.1 ¶ 9.) The minimum qualifications for the position included: (1) successful completion of an approved electrician apprentice training program supplemented by two years of journeyman experience, including one year of electrical inspection experience; (2) considerable knowledge of the laws, codes, and ordinances governing electrical installations; (3) considerable knowledge of the Code. (Pl. Resp. 56.1 ¶ 72.) Duties for the position included: (1) supervising and coordinating work assignments of electrical inspectors to ensure compliance with the building code; (2) supervising the inspection of electrical installation; (3) supervising the issuance of certain notices; (4) meeting with inspectors, contractors, and the public to interpret building code requirements; (5) conducting field inspections to check quality of work; (6) reviewing daily inspection reports; and (7) maintaining records and preparing reports. (Id.) Additionally, when the employment decision was governed by IBEW Collective Bargaining Agreement (the "CBA"), section 14.8 of the CBA required the City to "select the most qualified applicant" and, when "applicants [we]re equally qualified," to "select the most senior employee."(Allen Resp. 56.1 ¶ 12; City Defs. Resp. 56.1 ¶ 12; Pl. 56.1 Resp., Ex. 22, CBA.)

At some point after the positions became available, former Building Department Commissioner Norma Reyes appointed John Hammersmith ("Hammersmith") to serve as an Acting Supervisor until the EB Department supervisor positions were permanently filled. (Allen Resp. 56.1 ¶ 14; City Defs. Resp. 56.1 ¶ 14.) Sebastian believed that Mike Reynolds ("Reynolds") acted and served unofficially as an Acting Supervisor during the EB Department's supervisor hiring sequence.*fn5 (Allen Resp. 56.1 ¶ 14; City Defs. Resp. 56.1 ¶ 14; Pl. 56.1 Resp., Ex. 2, Sebastian Dep. 108-13.)

Sebastian, for the first time since he began working for the EB Department, applied for the supervising electrical inspector position by submitting an application. (Pl. Resp. 56.1 ¶ 10; Allen Resp. 56.1 ¶ 12; City Defs. Resp. 56.1 ¶ 13.) After submitting his application, Sebastian met with Allen to inform him that he had applied for the position (the "May 2004 conversation"). (Allen Resp. 56.1 ¶ 15; City Defs. Resp. 56.1 ¶ 15.) The parties dispute what occurred during the meeting. According to Sebastian, Sebastian met with Allen to provide him with his credentials for the promotion. (Allen Resp. 56.1 ¶ 15; City Defs. Resp. 56.1 ¶ 15; Pl. 56.1 Resp., Ex. 2, Sebastian Dep. 10-11, 46-49.) The first time Sebastian was deposed, he testified that, after he informed Allen of his qualifications, Allen told him, "Tom, you are Indian. You will never get promoted." (Pl. 56.1 Resp., Ex. 2, Sebastian Dep. 10-11, 48.) Subsequently, the fourth time he was deposed, Sebastian testified that, Allen told him, "'Tom, you are Indian. You're never going to get promoted because you are not politically involved.'" (City. 56.1, Ex. I, Sebastian Dep. 693-94.)

Allen denies that he met with Sebastian to discuss Sebastian's qualifications and denies that he ever told Sebastian that Sebastian's national origin or political activity would impact his ability to obtain the promotion. According to Allen, Sebastian came to him, informed him that he was applying for the promotion, and told him that Patterson had told Sebastian that Sebastian was going to be promoted. (Allen Resp. 56.1 ¶ 15; City Defs. Resp. 56.1 ¶ 15; Pl. 56.1 Resp., Ex. 8, 190-94.) Sebastian then laid cancelled checks on Allen's desk and made comments regarding how he had contributed to political funds. (Allen Resp. 56.1 ¶ 15; City Defs. Resp. 56.1 ¶ 15; Pl. 56.1 Resp., Ex. 8, Allen Dep. 190-94.) Allen said that he told Sebastian to pick up the checks, displaying the checks was inappropriate, and that "none of [that] ha[d] anything to do with" who would be promoted. (Allen Resp. 56.1 ¶ 15; City Defs. Resp. 56.1 ¶ 15; Pl. 56.1 Resp., Ex. 8, 190-94.)

On May 23, 2004,*fn6 Sebastian sent a letter regarding his application to Kaderbek, copying Mayor Richard Daley, Sheila O'Grady (identified as Mayor Daley's Chief of Staff), and Alderman Bernard Stone (identified as "Building Committee Chairman"). (Pl. Resp. 56.1 ¶ 10.) In the letter, Sebastian identified himself as a candidate for the promotion, detailed his qualifications, and provided copies of his resume, work commendations, electrical licenses, and credentials. (Allen Resp. 56.1 ¶ 17; City Defs. Resp. 56.1 ¶ 17; Pl. 56.1 Resp., Ex. 27, May 5, 2004 Letter.)

The Interviews

The City determined that fifteen of the applicants, including Sebastian, Hammersmith, and Reynolds, were eligible for the interview. (Allen Resp. 56.1 ¶¶ 13, 28; City Defs. Resp. 56.1 ¶¶ 13, 28.) Kaderbek did not participate in the interview process; instead he delegated the interviews to Kozicki and other bureau chiefs. (Pl. Resp. 56.1 ¶ 80; Allen Resp. 56.1 ¶ 18; City Defs. Resp. 56.1 ¶ 18; Pl. 56.1 Resp., Ex. 20, Kaderbek Dep. 34.) On the evening of July 26, 2004, Kozicki called Allen and informed Allen that he would be participating in the interviews alongside Kozicki. (Pl. Resp. 56.1 ¶¶ 11-12.)

Kaderbek expected Kozicki to use a standard written list of questions for all of the interviews to ensure that the interviews remained impartial. (Allen Resp. 56.1 ¶ 18; City Defs. Resp. 56.1 ¶ 18; Pl. Resp. 56.1, Ex. 20, Kaderbek Dep. 43-47.) At Kozicki's request, Allen prepared a list of eight questions to test the applicants' technical knowledge of the Code and a"quick template" that listed brief answers to the questions (the "Code questions"). (Pl. Resp. 56.1 ¶ 11; Allen Resp. 56.1 ¶ 19; City Defs. Resp. 56.1 ¶ 19.) Allen based the answers on the template solely on his personal knowledge of the Code. (Allen Resp. 56.1 ¶ 19; City Defs. Resp. 56.1 ¶ 19.) The interviews took place on July 27, 2004 and August 3, 2004. (Pl. Resp. 56.1 ¶ 12.) Kozicki and Allen conducted the July 27th interviews, while Kozicki and Kevin Bush ("Bush"), then a Deputy Commissioner in the EB Department, conducted the August 3rd interviews. (Id.) Allen was the only individual on any of the interview panels who had electrical experience or knowledge of the Code. (Def. Allen 56.1 Resp. ¶ 21; City Defs. 56.1 Resp. ¶ 21.) As a result, Kozicki relied on Allen and Bush and asked them how the candidates performed to determine whether the applicants answered the Code questions correctly. (Def. Allen 56.1 Resp. ¶ 21; City Defs. 56.1 Resp. ¶ 21; Pl. Ex. 15, Kozicki Dep. 198-201, 209.)

Sebastian was one of eleven candidates interviewed by Kozicki and Allen on July 27. (Pl. Resp. 56.1 ¶¶ 12, 15.) Kozicki first asked each candidate a series of non-technical questions relating to the candidate's qualifications, ideas, and opinions about the Department. (Pl. 56.1 Resp. ¶ 14.) The parties dispute some details regarding the interviews, such as the length of time of each interview, whether the applicants were given the Code questions to review, and whether Kozicki and Allen took notes during all of the interviews. (Allen 56.1 Resp. ¶¶ 22, 24-25; City Defs. 56.1 Resp. ¶¶ 22, 24-25.) They dispute whether Allen asked Sebastian all eight Code questions, whether he asked Sebastian different technical questions as compared to other candidates, and whether he and Kozicki took notes regarding Sebastian's answers. (Def. Allen 56.1 Resp. ¶¶ 24-25; City Defs. 56.1 Resp. ¶¶ 24-25; Sebastian Dep. 57-66, 103-06; Allen 56.1 Resp., Ex. H, Interview Evaluations; Ex. J, George Dep. 23-33.) Sebastian believes that Allen asked him different questions than those included on the Code questions list. (Def. Allen 56.1 Resp. ¶ 25; City Defs. 56.1 Resp. ¶ 25; Sebastian Dep. 103-06.) Allen told Kozicki that Sebastian provided incorrect answers to a few of the Code questions. (Allen Resp. 56.1 ¶ 27; City Defs. Resp. 56.1 ¶ 27.) Kozicki and Allen did not ask Sebastian any questions regarding his political activities or lack thereof during the interview. (Pl. Resp. 56.1 ¶ 79.)

Kozicki formulated his own opinions and then held a meeting with Bush and Allen during which the three men discussed their opinions and came to a conclusion as to who the best candidates were. (Def. Allen Resp. 56.1 ¶ 26; Def. City Defs. Resp. 56.1 ¶ 26; Pl. 56.1 Ex. 15, Kozicki Dep. 194-96, 247-52.) Kozicki then rated the candidates. (Pl. 56.1 Ex. 15, Kozicki Dep. 194-96, 247-52.) Allen denies that he attended the meeting. (Pl. 56.1 Resp. ¶ 16.) Allen says that he completed his score sheets immediately after they completed the interviews on July 27, 2004 and never met with Kozicki, Kaderbek or Bush regarding the scoring. (Id.)

The three interviewers used standardized forms to rate the candidates for the supervisor position on a scale of one through five in the following four categories: (1) training; (2) experience; (3) communication skills; and (4) technical knowledge. (Pl. Resp. 56.1 ¶ 13.) Each category was to be equally weighted. (Pl. Resp. 56.1 ¶ 13; City Defs. Resp. 56.1 ¶ 18; Allen 56.1, Ex. H.) While the interviewers for the 2004 supervisor promotions could have looked at "anything" when evaluating the candidates, they did not review the candidates' applications or disciplinary histories. (City Defs. 56.1 Resp. ¶ 26; Allen 56.1 Resp. ¶ 26.)

Of the eleven candidates interviewed on July 27, 2004, Allen evaluated Sebastian at an overall average score of 2.75, which placed Sebastian eleventh out of the eleven candidates interviewed on that date. (Pl. 56.1 Resp. ¶ 15.) Kozicki evaluated Sebastian at an overall average score of 3.25, placing him at a tie for eighth out of the eleven people interviewed on July 27, 2004 and tenth out of the fifteen total candidates. (Id.) Bush did not interview Sebastian or any of the three successful candidates. (Pl. Resp. 56.1 ¶ 18.) Ultimately, when the scores were tallied and averaged, Sebastian tied with three other candidates for the lowest average score of 3.0. (Id.)

Allen and Kozicki had each ranked the three successful candidates -- Reynolds, Hammersmith, and Keith Hall ("Hall") -- as first, second, and third. (Def. Allen Resp. 56.1 ¶ 28; Def. City Defs. Resp. 56.1 ¶ 28; Pl. 56.1 Resp. ¶ 18.) The three individuals received the three highest scores and, ultimately, the promotion. (Def. Allen Resp. 56.1 ¶ 28; Def. City Defs. Resp. 56.1 ¶ 28.) While Kozicki, Allen, and Bush gave different technical ability scores for more than half of the unsuccessful candidates, Kozicki and Allen both gave Hammersmith, Reynolds, and Hall perfect "5" ratings for technical knowledge. (Allen Resp. 56.1 ¶ 27; City Defs. Resp. 56.1 ¶ 27; Allen 56.1 Resp., Ex. H.) Allen gave Sebastian a score of "2" on the technical knowledge portion. (Allen Resp. 56.1 ¶ 27; City Defs. Resp. 56.1 ¶ 27; Allen 56.1 Resp., Ex. H.)

Kaderbek approved the 2004 promotions, relying on the recommendations of the individuals who interviewed the candidates. (Pl. 56.1 Resp. ¶ 80.) Typically, Kaderbek would review the documents in the packet as well as the numerical ratings and identify the three candidates with the highest average scores. (Pl. Resp. 56.1 ¶ 17; Allen 56.1 Resp., Ex. I, Kaderbek Dep. 70-73.) Kaderbek would then sign, date, and send a referral list and final employment decision form toMary Ann Ciaravino*fn7 ("Ciaravino"). (Pl. Resp. 56.1 ¶ 17; Allen 56.1 Resp., Ex. I, Kaderbek Dep. 70-85.) Upon receipt of this form, Ciaravino would generate letters informing the candidates whether or not they had been selected. ( Allen 56.1 Resp., Ex. I, Kaderbek Dep. 78-79.) On or about August 19, Kozicki gave Ciaravino a document that listed the numerical scoring results from the July 27 and August 3 interviews. (Allen Resp. 56.1 ¶ 28; City Defs. Resp. 56.1 ¶ 28.) The referral list and final employment decision form that Kaderbek gave to Ciaravino also noted a date of August 19, 2004 next to Kaderbek's signature. (Allen 56.1 Resp., Ex. I, Kaderbek Dep. 85-86, Kaderbek Dep. Ex. 5.) While Kaderbek speculated that he gave the referral list and final employment decision form to Ciaravino on August 19, 2004, he also testified that the date did not appear to be in his handwriting and he had no reason - one way or another - to doubt the accuracy of the date. (Allen 56.1 Resp., Ex. I, Kaderbek Dep. 85-86, Kaderbek Dep. Ex. 5; City Defs. 56.1 Resp, Ex. T, Kaderbek Dep. 223-25.) However, the letters notifying Hammersmith, Hall, and Reynolds that they received the supervisor promotion, which were signed by Kaderbek, are dated August 18, 2004. (Allen Resp. 56.1 ¶ 28; City Defs. Resp. 56.1 ¶ 28; Pl. 56.1 Resp., Ex. 33, Supervisor Promotion Letters.) Ciaravino asserted her Fifth Amendment right when asked whether "the letters, advising Mr. Reynolds, Hammersmith and Hall that they were getting the job, went out a day before Mr. Kozicki ever gave you the scores and the results from the interviews for these jobs isn't that right?" (Allen 56.1 Resp. ¶ 29; City Defs. 56.1 Resp. ¶ 29.) Allen had no communication with Ciaravino regarding the 2004 supervisor promotions. (Pl. 56.1 Resp. ¶ 16.)

Defendants' Scoring Explanations

In his deposition, Kozicki explained that he sought someone with knowledge of the Code who could "handle themselves well on their feet," handle pressure and stress, communicate well with the inspectors, and "get things done" in a "very high stressed environment" and "a difficult job." (Pl. Resp. 56.1 ¶ 73.) He did not look at any of the candidates' discipline files. (Id.) Kozicki said that Sebastian "did a very poor job in the interview" and answered questions poorly. (Pl. Resp. 56.1 ¶ 74.) Kozicki knew that Sebastian was a sign inspector and believed that "the perception in the [D]department" was that sign inspectors were not considered to be as "good" as general electrical inspectors. (Id.) In contrast, Kozicki testified that, among other things: (1) Hall interviewed well; (2) Kozicki believed that Hammersmith was a hard worker, Hammersmith was familiar with all of the aspects of the departments because he had worked in three different bureaus, and others within the Department thought well of him; and (3) Reynolds "[g]ave an excellent interview," "handled himself well," used examples well during the interview, had years of experience in management, and had done an excellent job in the Certificate of Occupancy unit. (Pl. Resp. 56.1 ¶ 75.)

Allen stated that he rated each candidate in terms of training, experience, communication skills, and technical knowledge. (Pl. Resp. 56.1 ¶ 76.) He took into account the responsiveness and quality of each candidate's responses to the non-technical questions and the accuracy of their responses to the technical questions. (Id.) Because the successful candidates would be reporting directly to him, he was mindful of each candidate's ideas about improving the Department and ability to efficiently lead and manage the inspectors. (Id.) Allen stated that Sebastian answered some of the technical questions incorrectly and did not "respond directly and fully to several technical questions" or provide concrete examples of his experiences with and ideas for the Department, although he was specifically asked to do so. (Pl. Resp. 56.1 ¶ 77.)

In contrast, Allen stated that Hammersmith, Reynolds, and Hall performed better than Sebastian during their respective interviews. (Pl. Resp. 56.1 ¶ 78.) According to Allen, the other candidates interacted with the interviewers and conveyed their ideas for the Department. (Id.) Based on their performance, Allen believed that Hammersmith, Hall, and Reynolds would be better able to understand Department operations on a larger scale and to manage other employees, as compared to Sebastian. (Id.)

The Promoted Individuals

Shortly before his promotion, Hammersmith worked as an electrical inspector in the Certificate of Occupancy team task force.*fn8 (Allen 56.1 Resp. ¶ 31; City Defs. 56.1 Resp. ¶ 31.) In either the late 1970's or early 1980's, Hammersmith took, but did not pass, the Supervising Electrician's License Code exam. (Allen 56.1 Resp. ¶ 31; City Defs. 56.1 Resp. ¶ 31; City Defs. 56.1 Resp., Ex. B, Hammersmith Dep. 131.) Hammersmith has not attempted to obtain a license because he believes it is a "conflict of interest" to hold the license and work for the EB Department. (City Defs. 56.1 Resp., Ex. B, Hammersmith Dep. 131.)

Hammersmith grew up in "the same area" as Allen's family.(Allen 56.1 Resp. ¶ 32; City Defs. 56.1 Resp. ¶ 32; Pl. 56.1 Resp., Ex. 24, Hammersmith Dep. 88-89; City Defs. 56.1 Resp., Ex. M, Hammersmith Dep. ¶ 4.) Hammersmith met Alderman Allen for the first time at a party some time between 2004 and 2006. (Allen 56.1 Resp. ¶ 32; City Defs. 56.1 Resp. ¶ 32; Pl. 56.1 Resp., Ex. 24, Hammersmith Dep. 88-89.) Hammersmith has a long history of performing political work for Alderman Allen's campaigns, Allen's former alderman father-in-law, and certain candidates endorsed by the Local 134 electrician's union. (Allen 56.1 Resp. ¶ 32; City Defs. 56.1 Resp. ¶ 32; Pl. 56.1 Resp., Ex. 24, Hammersmith Dep. 8-16, 88-92.) Hammersmith has signed petitions, contributed money, put campaign signs on his lawn, walked in parades, and walked picket lines. (Allen 56.1 Resp. ¶ 32; City Defs. 56.1 Resp. ¶ 32.) With respect to Alderman Allen specifically, Hammersmith has passed out literature, signed petitions, worked the polls, and gone door to door. (Allen 56.1 Resp. ¶ 32; City Defs. 56.1 Resp. ¶ 32; Pl. Ex. 24, Hammersmith Dep. 87- 91.)

Reynolds joined the City in 2000 and worked in the Certificate of Occupancy unit until shortly before his promotion. (Allen 56.1 Resp. ¶ 33; City Defs. 56.1 Resp. ¶ 33.) Reynolds grew up in the same neighborhood as State Representative Kevin Joyce, son of Jeremiah Joyce, and has known him since the 1970's. (Allen 56.1 Resp. ¶ 34; City Defs. 56.1 Resp. ¶ 34; Pl. 56.1 Resp., Ex. 30, Reynolds Dep. 261-62.) According to Sebastian, Jeremiah Joyce works as a political strategist for Mayor Daley. ( Pl. 56.1 Resp., Ex. 12, Sebastian Dep. 52.) Reynolds began his political activity in 2002. (Allen 56.1 Resp. ¶ 34; City Defs. 56.1 Resp. ¶ 34.) In Fall 2005, Reynolds became a precinct captain for the 19th Ward. (Allen 56.1 Resp. ¶ 34; City Defs. 56.1 Resp. ¶ 34; Pl. 56.1 Resp., Ex. 30, Reynolds Dep. 270.) Reynolds was responsible for "get[ting] the vote out" in his precinct and working for the candidates endorsed by the 19th Ward. (Allen 56.1 Resp. ¶ 34; City Defs. 56.1 Resp. ¶ 34; Pl. 56.1 Resp., Ex. 30, Reynolds Dep. 263, 286.) In 2006, Reynolds coordinated the South Side Irish parade. (Allen 56.1 Resp. ¶ 34; City Defs. 56.1 Resp. ¶ 34.)

Hall is an ordained associate minister at the Apostolic Faith Church in Chicago. (Allen 56.1 Resp. ¶ 35; City Defs. 56.1 Resp. ¶ 35; Pl. 56.1 Resp., Hall Dep. 270.) Hall testified that there have been a few occasions when elected officials have been in attendance at the church. (Allen 56.1 Resp. ¶ 35; City Defs. 56.1 Resp. ¶ 35; Pl. 56.1 Resp., Hall Dep. 270-72.) Specifically, Hall recalled that State Senator Barack Obama attended a church service "a number of years ago" (before becoming a senator), as did Alderwoman Dorothy Tillman at some point. (Allen 56.1 Resp. ¶ 35; City Defs. 56.1 Resp. ¶ 35; Pl. 56.1 Resp., Hall Dep. 270-72; Allen 56.1, Ex. JJ 406-07.) In addition, while a number of Local 134 electricians (fewer than ten) have attended his church, Hall is not aware of any Department employees who have been in attendance. (Allen 56.1 Resp. ¶ 35; City Defs. 56.1 Resp. ¶ 35; Pl. 56.1 Resp., Hall Dep. 316-17.) In the mid-90's, Hall volunteered to do some political work, which included knocking on doors and handing out flyers, for a candidate named "Lightfoot." (Allen 56.1 Resp. ¶ 35; City Defs. 56.1 Resp. ¶ 35; Pl. 56.1 Resp., Hall Dep. 262, 264.) Hall took the Supervising Electrician's License Code exam on one occasion, but did not pass. (Allen 56.1 Resp. ¶ 37; City Defs. 56.1 Resp. ¶ 37; Pl. 56.1 Resp., Ex. 3, Hall Dep. 344-45.)

Sebastian previously provided Hall with a training (lasting no more than one day) regarding sign inspections. (Allen 56.1 Resp. ¶ 38; City Defs. 56.1 Resp. ¶ 38; Pl. 56.1 Resp., Ex. 2, Sebastian Dep. 160-61.) Sebastian also claims that he trained Hammersmith, Reynolds, and Allen; the City denies this. (Allen 56.1 Resp. ¶ 38; City Defs. 56.1 Resp. ¶ 38; Pl. 56.1 Resp., Ex.4, Bailey Dep. 90-92; City Defs. 56.1 Resp., Ex. J, Allen Dep. 100; City Defs. 56.1 Resp., Ex. M, Hammersmith Aff. ¶ 12; City Defs. 56.1 Resp., Ex. N, Reynolds Aff. ¶ 9.)

Sebastian's EEOC Charge and Subsequent Events

On August 24, 2004, Sebastian was notified that he did not receive the supervising electrical inspector position. (Pl. 56.1 Resp. ¶ 21; Allen 56.1, Ex. E, Sebastian Dep. Ex. 37.) Two days later, on August 26, he sent a letter to Michael Fitzgerald ("Fitzgerald"), identified as a business manager for IBEW, requesting to file a grievance and alleging that he had been discriminated against on account of his national origin because he had not been promoted. (Pl. 56.1 Resp. ¶ 22; Allen 56.1, Ex. E, Sebastian Dep. Ex. 38.) Sebastian copied Michael Nugent ("Nugent") (identified as an IBEW business agent) and Gary Parks ("Parks") (identified as an IBEW union steward) on the letter. (Pl. 56.1 Resp. ¶ 22; Allen 56.1, Ex. E, Sebastian Dep. Ex. 38.)

On August 30, 2004, Sebastian sent a letter to Kaderbek -- with copies to Mayor Richard

Daley, Sheila O'Grady, Gene Lee ("Lee") (identified as Mayor Daley's Deputy Chief of Staff), Alderman Bernard Stone (identified as Buildings Committee Chairman), Ciaravino, and the IBEW -- alleging that he had not been promoted because he was Asian American. (Pl. 56.1 Resp. ¶ 23; Allen 56.1, Ex. E, Sebastian Dep. Ex. 39.) In response, Lee contacted and subsequently met with Sebastian. (Pl. 56.1 Resp. ¶ 24.) During the meeting, the two discussed Sebastian's qualifications and Sebastian voiced his concerns that he had been discriminated against on account of his national origin. (Pl. 56.1 Resp. ¶ 24; Allen 56.1, Ex. A, Sebastian Dep. 118-22.)

On September 8, 2004, Sebastian informedAllen that he planned to file a union grievance regarding his failure to be promoted. (Pl. 56.1 Resp. ¶ 22.) Allen encouraged him to do so. (Id.) With Parks's assistance, Sebastian prepared a formal union grievance, which he filed on September 10, 2004. (Id.) After the grievance was processed and denied, the union declined its option under the CBA to pursue arbitration. (Id.)

Alleged Retaliation

On September 17, 2004, Sebastian filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that he had been denied a promotion on the basis of his race (Asian) and national origin (Indian) ("EEOC charge"). (Pl. 56.1 Resp. ¶ 25.)

Sebastian claims that, subsequent to the EEOC charge and as a result of this charge (as well as his April 2005 lawsuit), the City engaged in a number of retaliatory acts. The following is a timeline of the events that occurred subsequent to the filing of his EEOC charge, placing the alleged retaliatory acts in the context of the EEOC investigation as well as the progression of his lawsuit.

On September 29, 2004, Scott Loeff ("Loeff"), the City's Assistant Commissioner of Labor Relations, sent the EEOC charge to Kozicki via email and copied Kaderbek. (City Defs. 56.1 Resp. ¶ 71; Allen 56.1 Resp. ¶ 71; (Pl. 56.1 Resp. ¶ 45; Pl. 56.1 Resp., Ex. 51, Kozicki Sept. 29, 2004 E-mail; City Defs. 56.1 Resp., Ex. FF, Loeff Aff. ¶ 3.) Nine days later, on October 8, 2004, Allen assigned Sebastian to work on the strategic task force ("STF") for the first time.*fn9 (City Defs. 56.1 Resp. ¶ 71; Allen 56.1 Resp. ¶ 71; Pl. 56.1 Resp. ¶ 35.) STF was one of several projects in which electrical and other types of inspectors in the Department were assigned as a team to complete field inspections of different classes of buildings. (Pl. 56.1 Resp. ¶ 34.) The teams often went to dangerous areas in the City and, when necessary, were accompanied by armed police officers. (City Defs. 56.1 Resp. ¶ 72; Allen 56.1 Resp. ¶ 72. While some electrical inspectors considered STF work safer than solo field inspections because they worked with a team and police escorts, others considered the work dangerous and a punishment. (City Defs. 56.1 Resp. ¶ 72; Allen 56.1 Resp. ¶ 72; Pl. 56.1 Resp., Ex. 5, Simmons Dep. 188-89; Pl. 56.1 Resp., Ex. 52, Browning Dep. 28-29; City Defs. 56.1 Resp., Ex. AA, Simmons Dep. 86-87; City Defs. 56.1 Resp., Ex. G, Cunningham Aff. ¶ 11, Gallagher Aff. ¶ 12, Podbielski Aff. ¶ 12.)

On January 12, 2005, EEOC investigator Joshua George ("George") conducted a phone interview with Sebastian regarding the EEOC charge. (Pl. 56.1 Resp. ¶¶ 26-28; Allen 56.1, Ex. J, George Dep. 21-33.) During the interview, Sebastian admitted to givingcertain answers contained in Allen's notes. (Pl. 56.1 Resp. ¶ 28; Allen 56.1, Ex. J, George Dep. 21-33.)

On April 8, 2005, Sebastian filed his original complaint in the United States District Court for the Northern District of Illinois, alleging race and national origin discrimination*fn10 (the "First Complaint"). (Pl. 56.1 Resp. ¶ 30.)

Over two months later, on June 15, 2005, Sebastian attended a predisciplinary hearing with Nugent, Loeff, Hall, and Allen regarding Sebastian's failure to report to work on June 10, 2005, a day he was assigned to work STF ("June 2005 predisciplinary hearing"). (Pl. 56.1 Resp. ¶ 45.) Because Sebastian produced evidence that he had visited a doctor on June 10, Loeff determined that no violation of City policy had been established. (Id.) Sebastian did not receive a reprimand or other sanction as a result of the incident. (Id.)

On July 1, 2005, the last work day preceding the Independence Day holiday in 2005, Sebastian worked a "skeleton crew" shift from 2:00 p.m. to 3:30 p.m. (City Defs. 56.1 Resp. ¶ 82; Allen 56.1 Resp. ¶ 82; Pl. 56.1 Resp. 46.) The "skeleton crew" is a group of employees that remains at work for approximately one to one and one-half hours (to finish a normal work day) when the City grants early dismissal to a majority of the employees on days preceding major holidays. (Pl. 56.1 Resp. ¶ 46.) Sebastian claims he was assigned to work the shift by Allen; Allen claims he volunteered. (City Defs. 56.1 Resp. ¶ 82; Allen 56.1 Resp. ¶ 82; City Defs. Ex. V, Reynolds Dep. 218-19; Pl. 56.1 Resp., Ex. 12, 126-30.) Non-supervisory EB Department inspectors Cheryl Palombizio ("Palombizio"), Dan Lynch, and Tom Podbielski worked the skeleton crew shift on the preceding Christmas Eve 2003, New Year's Eve 2003, and July 4, 2004, respectively.*fn11 (Pl. 56.1 Resp. ¶ 46.)

According to the Department's general rules, sign inspectors are permitted to spend only one day each week in the Department's offices and must spend the remaining four days in the field conducting inspections. (Pl. 56.1 Resp. ¶ 48.) At some point in October 2005, Hammersmith approached Sebastian and instructed Sebastian to leave the office to begin his field work. (Pl. 56.1 Resp. ¶ 49.) Sebastian told Hammersmith that he needed another thirty minutes to complete his paperwork, which Hammersmith permitted. (Id.)

In late 2005 or early 2006, Sebastian attended an informal meeting with Bush, Hall, and Allen regarding an incident in which Hall had informed Sebastian that Sebastian was assigned to STF the following day and Sebastian responded that he could not work STF because he was taking a sick day for a doctor's appointment. (Pl. 56.1 Resp. ¶ 52.) Sebastian did not submit a sick time request slip for the doctor's appointment prior to advising Hall that he could not work STF because he was taking the day off. (Id.) No discipline resulted from the incident. (Id.)

At some point in 2006, Hall approached Sebastian when Sebastian was in the office for his second day in one week and instructed Sebastian to report to work in the field. (Pl. 56.1 Resp. ¶ 50.) When Sebastian told Hall that he had paperwork to complete, Hall allowed him to stay in the office with the understanding that the day would be Sebastian's last office day for the week. (Id..)

From October 2004 until April 2006, Sebastian, as well as other electrical inspectors, were periodically assigned to work STF on several occasions. (Pl. 56.1 Resp. ¶ 36.) At some point during the interim, Sebastian complained to Allen that sign inspectors with less seniority should be assigned to work STF. (Id.) As a result, Allen assigned two less-senior sign inspectors -- Bernard Simmons and Glenn Ford -- to work on STF in rotation with Sebastian. (Id.)

On January 10, 2006 at 9:05 a.m., Allen directed Hall to assign Sebastian to STF that day because the permanently assigned STF inspector was unavailable to work. (City Defs. 56.1 Resp. ¶ 73; Allen 56.1 Resp. ¶ 73.) Approximately two months later, on March 7, 2006, Allen sent an email to EB supervisors requesting that they select an inspector to work STF the following day. (City Defs. 56.1 Resp. ¶ 74; Allen 56.1 Resp. ¶ 74.) Sebastian was selected and the parties dispute how he was selected. (City Defs. 56.1 Resp. ...


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