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Colón v. Illinois Bell Telephone Co.

September 28, 2009


The opinion of the court was delivered by: Judge Joan B. Gottschall


Before the court is defendant Illinois Bell Telephone Company's ("IBTC's") motion for summary judgment. IBTC's motion is granted.


The following facts are taken from the parties' statements of uncontested facts, and are undisputed unless otherwise stated. Plaintiff Jorge Colón was employed by IBTC from January 2001 until October 2005, when he was terminated. Colón sued, alleging that he suffered discrimination as a result of his national origin (Puerto Rican or Hispanic) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., that he was retaliated against for engaging in protected activity under Title VII, and that he was discriminated against on the basis of his disability in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12111, et seq.

While working at IBTC, Colón worked as a Sale and Service Representative-he answered phone calls from IBTC customers. At the location where Colón worked, Sale and Service Representatives were split into two groups: the Bilingual Group and the English-Only Group. Colón is fluent in English and Spanish, and was assigned to the Bilingual Group.

When Colón was originally hired, he handled calls from Spanish speakers only, and only from the state of Illinois. In 2003 Colón started being required to answer questions from callers who spoke either English or Spanish, and who resided in Illinois or in other states. These changes were not unique to Colón; Colón worked in the Bilingual Group, and these changes applied to all members of that group. In contrast, and as its label suggests, the English-Only Group answered calls only in English, and any member of that group would answer calls from one state only. From this, Colón contends that he and other members of the Bilingual Group had to work harder than the English-Only Group because they had to (1) answer calls in multiple languages, and (2) answer calls from multiple jurisdictions. This latter point is relevant because different states have different service plans, rules, notices, and regulations which may need to be relayed to the customer; Colón was required to answer calls from both Illinois and Ohio, but each required specific knowledge and training. However, and pursuant to a collective bargaining agreement, a Sales and Service Representative is paid the same irregardless of the group to which she is assigned; Colón was paid the same as an English-Only Group employee (though there was some pay variation, based on factors such as years of employment).

In June 2003, Colón suffered the traumatic death of his five-year-old son, who accidentally drowned while the family was on vacation. Colón was subsequently diagnosed with post-traumatic stress disorder ("PTSD") as a result of this incident. Colón was granted periods of both disability leave*fn1 and leave pursuant to the Family Medical Leave Act ("FMLA") from 2003 to 2005, including an extended period from November 4, 2004 through January 24, 2005.

Colón contends that after he returned to work on January 25, 2005, he continued to miss work periodically, and was suspended one day for missing work beyond that permitted by the FMLA. At some point in 2005, Colón submitted a letter from his therapist to IBTC, requesting an accommodation on account of his PTSD. Colón requested a less stressful job. This request was never formally granted or denied; IBTC contends that Colón failed to respond to requests for medical documentation, while Colón contends that he adequately responded and that IBTC acted improperly in failing to give him a less stressful job.

Colón performed his job adequately for approximately nine months starting in January 2005, except for the attendance problems noted above. During this time, Colón contends that he received calls only from Illinois customers and did not have to answer any calls from other states; the reason for this-whether it was an intentional act by IBTC or whether it was just a random event-is unclear from the record. At some point in later September or early October 2005, however, Colón received a call from a customer in Ohio. He did not answer this caller's question, but instead returned the caller to the "queue," requiring that it be answered by another Sale and Service Representative. Colón had previously been trained to handle calls from Ohio, but maintains that he was uncomfortable responding to calls from Ohio at that time. Colón does not provide an explicit reason, but the inference suggested is that he was no longer familiar with the rules specific to answering calls from Ohio.

A meeting was held on October 7, 2005 regarding Colón's failure to answer calls from Ohio. Representatives from IBTC, from the union, and Colón were in attendance. The parties dispute precisely what was said at the meeting, but there is no dispute that Colón stated he did not believe it was fair that the Bilingual Group had to answer calls from multiple states without the benefit of additional compensation; and that he felt he could not properly answer Ohio calls both because of his PTSD and because he had not received Ohio calls for some time. At that meeting, all agreed that Colón would receive refresher training on how to handle calls from Ohio, and would handle them in the future. The union representative also stressed that Colón was obligated to answer calls from Ohio.

The refresher training was to occur on October 12, 2005, but on that date Colón refused to take the training, claiming that he was waiting to hear back from his union representative.*fn2 Colón was placed on unpaid suspension for insubordination on the same day he refused to take the refresher training. He was terminated on October 28, 2005, for the stated reason of insubordination. Colón contends that he was actually terminated either as a form of retaliation, or because of his PTSD diagnosis. He offers no particular evidence for the latter ground except that he was not given an alternative job when he requested one. Regarding the allegation of retaliation he cites the following facts: First, he wrote an "open letter" in 2004 arguing that the Bilingual Group was not being treated fairly and that it should either be paid more or be given work terms equal to those of the English-Only Group. This letter was circulated among co-workers and was sent to the union, though it was not directly sent to IBTC management. Second, during meetings in October 2005 regarding Colón's failure to answer the call from Ohio, Colón expressed directly to IBTC management that the Bilingual Group was not being treated fairly. Third, Colón stated in his deposition that his union representative warned him a month before he was terminated that he was "making things hard" for himself by speaking out about the injustices he perceived the Bilingual Group was suffering.


Summary judgment is warranted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Brengettcy v. Horton, 423 F.3d 674, 680 (7th Cir. 2005). All facts, and any inferences to be drawn from them, must be viewed in ...

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