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Dawson v. City of Chicago

August 27, 2009

ANTHONY DAWSON, PLAINTIFF,
v.
CITY OF CHICAGO, SUSAN JOYNER, JAN ARNOLD, NURIA FERNANDEZ, AND ROBERT KELLER, DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Anthony Dawson's ("Dawson") second amended complaint ("complaint") alleges race discrimination in violation of section 703(a) of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2(a), against the city of Chicago ("City") (count I); retaliation in violation of Title VII against the City (count II); constructive discharge in violation of Title VII against the City (count III); violations of 42 U.S.C. §§ 1981 and 1983 against the City (count IV); and individual liability under §§ 1981 and 1983 against Susan Joyner ("Joyner"), Jan Arnold ("Arnold"), Nuria Fernandez ("Fernandez"), and Robert Keller ("Keller") (count V).*fn1 The City, Joyner, Arnold, Fernandez, and Keller move for summary judgment on counts I, III, IV, and V. Keller and Fernandez also move for summary judgment on count V. For the following reasons, defendants' motion for summary judgment is granted in part. I grant summary judgment for defendants on the Title VII, § 1981, and § 1983 hostile work environment claims based on racial harassment in counts I, IV, and V, for the City on count IV, and for Keller on count V. I deny summary judgment for defendants on count III, and for Fernandez on count V.

I. Dawson is African-American

He has a bachelor of arts degree from the University of Notre Dame. Dawson began working for the City's Budget Department in June 2000 as a Senior Budget Analyst, during which time he did not supervise employees. From 2002 to 2004, Dawson held the title of Fiscal Administrator in the City's Department of Buildings, during which time he did not supervise employees. At some point, the Department of Buildings became the Department of Construction and Permits, and Dawson's title changed to Assistant Commissioner, Head of Strategy. In May 2005, Dawson was appointed to the position of Assistant Commissioner in the City's Department of Aviation ("Aviation"). Initially, Dawson's duties were to help gauge what materials and supplies went in and out of the Aviation warehouse and "we implemented production metric where there was none before." His duties did not include supervising employees. Subsequently, Dawson was appointed Fiscal Administrator.

In December 2005, Dawson became Terminal Manager. Defendants assert that Dawson "knew that the Acting Terminal Manager position was not a permanent position when he transferred into the position[,]" but the record on this point is not entirely clear. When asked if he was going to be an acting Terminal Manager, Dawson testified that "[e]veryone was acting terminal managers." When asked what his understanding was of the acting process when he agreed to take the position, Dawson testified that he did not "understand acting [] until [he] was in the position." When asked what his understanding was of the acting process once he took the position, Dawson testified that his understanding "[w]as that acting [] was and could be limited in scope with regards to an individual staying in that position long-term." Dawson's last day with Aviation was October 5, 2007.

While Dawson was Terminal Manager, he was supervised by Joyner, Assistant Commissioner. Joyner was supervised by Michael Gorman ("Gorman"). Gorman's "budget title" was Deputy Commissioner of Facilities from July 2006 to May 2008. Arnold was the Chief Management Officer of Aviation from October 2005 through June 2006, and the Managing Deputy/Chief Administrative Officer of Aviation from June 2006 through September 2007. Arnold oversaw operations relating to air side, land side, facilities, safety, security, all business functions, and human resources. In December 2006, Arnold evaluated Dawson's performance with a total score of 2.74, which she characterized as "above average." Fernandez was Commissioner of Aviation.

As Terminal Manager, Dawson was responsible for being the point of contact for maintenance, contractors, concessions, the airlines, and other City employees in the terminal as well as leading the custodial department. The list of Terminal Manager responsibilities comprising Dawson's duties and responsibilities includes: day-to-day operations of terminal building and concourses, including interaction with airlines, tenants, contractors, trades staff, and inspection; review reports for timeliness of completing work orders; report deficiencies and propose improvements to enhance appearance of facilities; coordinate repairs; perform daily terminal and restroom inspections; investigate and respond to inquiries from tenants regarding facility issues; perform routine inspections of the terminal and concourses with the building engineer to ensure proper operation of building systems, weather tightness of the building envelope, proper maintenance, and code compliance; assist in administrating Passenger Assistance Program; report accidents, vandalism, or property damage; assist in administrating service contracts for the terminal building and concourses; develop a tenant relations plan coordinating each tenant's priority issues, frequency of contact, needs, and preferences; handle consulting services of architects, engineers, and other professionals on technical issues; interact with tenant improvement, relocation, and reconfiguration projects; attend weekly and monthly meetings as well as other meetings as requested; and review proposed project blueprints, attend pre-construction meetings, and review meetings as projects progress. Performing daily terminal and restroom inspections involved looking at every bathroom to ensure that they were clean and usable for the general public. Terminal 2 is the only terminal at O'Hare airport where the Terminal Manager supervises the custodial department.

On August 2, 2006, Fecketitsch was acting Terminal Manager of O'Hare's Terminal 1, which is about a five to ten minute walk from Dawson's office in Terminal 2. Fecketitsch approached Dawson and "aggressively" asked him about why he sent Joyner an e-mail about Fecketitsch's terminal, and said that Dawson did not "know what the hell [he] was talking about." Dawson asked Fecketitsch to wait until later to have the conversation, Fecketitsch refused, Dawson told Fecketitsch that Fecketitsch was harassing him, Fecketitsch followed Dawson to the Terminal Manager's office, Dawson told Fecketitsch he would not talk to him because he was "very, very belligerent[,]" and Fecketitsch "said 'You're a stupid fucken nigger.'"

According to Joyner, if one of her direct reports believed he was the victim of discrimination, the first thing that employee is supposed to do is report it to his supervisor. The next step is for the employee and Joyner to report it to the personnel department. Dawson "immediately" called Joyner.

Dawson also sent an e-mail to Robert May ("May"), Aviation human resources representative, notifying him of an incident with Fecketitsch. The e-mail states that Dawson was approached by Fecketitsch, who asked him "in a very unprofessional manner '...Do you have a problem with me.'" The e-mail does not refer to Fecketitsch using a racial slur. The e-mail further states that Dawson walked back to his office, and Fecketitsch followed him and continued to harass him in Heracles Cannon's ("Cannon") presence.

Cannon, who is African-American, was an Assistant Terminal Manager supervised by Dawson. Cannon testified that Dawson and Fecketitsch entered the office, Dawson told Fecketitsch that Fecketitsch was harassing him, and as Fecketitsch exited the office "he uttered the words stupid nigger." Cannon called Joyner and reported what he heard. Cannon remembered going to a meeting at personnel about the incident, and he wrote an incident report.

May, Stacy McNulty Ruffalo ("Ruffalo"), a former Aviation human resources employee, and Joyner spoke to Dawson about the incident. At that meeting, Dawson submitted an incident report claiming that Fecketitsch referred to him as a "stupid fucking nigger" and listing Cannon as a witness. May and Ruffalo advised Joyner "to make sure the two do not work together until we complete our investigation." Joyner informed May that making sure that Dawson and Fecketitsch did not work together would not be an issue because they were in separate terminals. Dawson did not ask that Fecketitsch be separated from him.

Joyner testified that, within a day or two of talking to Gorman about the incident, Gorman told her to move Dawson to the third shift even though Joyner told him that there was not enough staff available to do so. Dawson testified that, on August 4, 2006, Joyner told him that he would be moving to the third shift. Ultimately, the transfer was rescinded.

According to Dawson, after August 2, 2006, Fecketitsch constantly entered Terminal 2 and made Dawson aware of his presence. Dawson testified that Fecketitsch harassed Dawson with his presence and body language. On one occasion, Dawson was standing in front of his office, and Fecketitsch "stopped, got on his telephone, stood there and watched [Dawson] after he got off of his phone . . . . " Fecketitsch stared at Dawson while talking on the phone. When Fecketitsch hung up, he stared at Dawson, walked by him, and walked away. They did not speak to each other.

Express City policy, as codified in the Municipal Code of Chicago §§ 2-160-010, 2-160-030, and 2-160-100, prohibits discrimination, harassment, or retaliation based on race or color. In accordance with City policy, employee complaints of discrimination are investigated and recorded by the Department of Human Resources ("DHR"), Equal Employment Office ("EEO").

Dawson was advised that a written form needed to be completed and forwarded to Keller. Keller, who is African-American, was DHR EEO Specialist from August 1999 through September 2006. Keller's title changed to Project Coordinator in October 2006, but his responsibilities remained the same. Keller made written recommendations to the EEO officer or liaison, the basis of which depended on the case but included interviews and maybe reviewing certain documents.

Keller investigated Dawson's complaint and issued findings and recommendations for discipline to Aviation. Dawson never met with Keller regarding the incident, was never notified that there was an EEO investigation of this incident, and did not learn about a letter making findings regarding the investigation of this incident until after this lawsuit was filed. Keller did not have the authority to hire employees or to approve hiring decisions, nor was he involved with the posting of job positions. Keller attests that he does not have any supervisory responsibility, and he was not a decisionmaker regarding any of the employment decisions that affected Dawson or any other City employee.

On August 4, 2006, Keller received a call from Ruffalo informing him of an incident on August 2 involving Dawson and another employee that Ruffalo thought "was a violence in the workplace incident." On August 7, 2006, Dawson sent Keller an e-mail stating that on August 2, 2006 he made Joyner, May, and Ruffalo aware of "the horrible racial incident" he experienced with Fecketitsch. Dawson e-mailed Keller because he had sent an e-mail to Ruffalo, May, and Joyner asking what was going on with the investigation and had not heard back. Dawson's e-mail also states that, on August 4, 2006, Joyner told him that he would be working the third shift permanently, and that he felt that the "new assignment is clearly retaliation by [senior] DOA Management." Keller's response to Dawson's e-mail states that Keller has "no knowledge of [Dawson's] complaint" and will contact Joyner and May "to obtain information and a copy of [his] complaint." Keller's handwritten notes on the e-mail state "don't start with Mr. Dawson - timing is not good - move is suspect." On August 7, 2006, Dawson submitted an EEO complaint form to Aviation that was forwarded to DHR for investigation. On August 10, 2006, Keller received from Ruffalo the EEO complaint, the notes from the meetings, and Cannon's EEO witness statement.

After the incident with Fecketitsch, Dawson complained to Keller via e-mail about adverse actions he believed were taken in retaliation for complaining about discrimination. When asked whether Keller spoke to May again after speaking to May about the August 7, 2006 e-mail, Keller testified that he would have spoken to him "upon receipt of any of the E-mails."

On August 15, 2006, Dawson e-mailed Keller, stating that Joyner entered the office where he, Cannon, and William Cruse were sitting and "clasps her hands several times stating '..chop, chop, what are we doing here..'", which he felt was "demeaning, disrespectful, and had a racial overtone as all three employees in the office were African American Males." The e-mail also stated that when Dawson told Joyner that he "had not taken a lunch today[,]" she "stated '...Can't you take your lunch tomorrow...'" Regarding Dawson's e-mail, May stated in an e-mail dated August 15, 2006 that Joyner "feels very uncomfortable with direct supervision of theses [sic] two individuals" and it was May's "recommendation that we separate this group until we receive the recommendation from EAP." In an e-mail to May on August 16, 2006, Gorman stated that, "This might put a temporary fix to the issue, but I am not in the position of sending my problems to another department."

When Arnold received a copy of the charges that had been filed presumably with the Illinois Department of Human Rights ("IDHR") although the record is not clear on this point, she checked the date and signature.*fn2 Arnold then called Ruffalo to find out if Dawson had been at work that day, and was told that he was not and that he had used sick time. Arnold next contacted May and told him that there was a concern about a misuse of sick time, and that Dawson needed to fill out the appropriate certification forms. According to Arnold, she had Dawson fill out the form because sick time is supposed to be used for being sick or attending medical appointments. Arnold asked May to contact the law department to determine what the options were for disciplining Dawson. Based on May's conversation with the law department, it was Arnold's understanding that they could give Dawson a written warning or suspension. Arnold and May agreed that a five day suspension was appropriate because "there was a misuse of sick time as well as a falsification[.]"

On August 25, 2006, Dawson sent Keller an e-mail, stating that he was "being told to fill out A Sick Leave certification Form even though [he has] not called in sick 2 or 3 consecutive days." One of the questions Keller had about the request to have Dawson fill out a sick leave form was whether the process was being used to single him out. Keller was satisfied with the responses he got from management. Dawson attests that he forwarded an "e-mail string" to Fernandez on August 25, 2006, the top message in which states that Joyner "threatened" to take action against him unless he filled out the sick leave certification form. Prior to August 24, 2006, there were no instances when Joyner considered Dawson to have abused the City's attendance policy, and she did not remember having any problem with Dawson having excessive absences. Neither did Arnold know of any disciplinary actions against Dawson regarding attendance prior to August 24, 2006.

In or around September 2006, Dawson's responsibilities changed from terminal management to being responsible for the Terminal 2 custodial staff. Until September 2006, Arnold was not aware of any performance issues involving Dawson as Terminal Manager, and she did not recall receiving any complaints. Arnold did not know why the change was made, and she did not recall asking anyone or conducting any investigation. Keller testified that, upon receiving a September 14, 2006 e-mail from Dawson regarding Dawson's complaint of a demotion, Keller contacted the department. Keller testified that, after having a conversation with May regarding the September 14, 2006 e-mail, Keller did not take any action because, once he learns that someone filed a complaint with the IDHR or EEOC or has legal representation, his position is to "defer" so as not to "be cited for interference in the investigation."

On October 17, 2006, after investigating the allegations in Dawson's EEO complaint, Keller issued findings that the allegations were sustained. Keller's recommendations included providing Fecketitsch with disciplinary corrective action ranging from documented oral counseling to written reprimand, but not suspension. Aviation disciplined Fecketitsch in accordance with Keller's recommendations. Keller never instructed anyone to have Dawson fill out separate complaint forms alleging ...


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