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Hicks v. Forest Preserve District of Cook County

December 15, 2009


The opinion of the court was delivered by: Honorable David H. Coar


Dwaine K. Hicks, an employee of the Forest Preserve District of Cook County, Illinois ("the District"), claims that the District discriminated and retaliated against him based on his race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The District has moved for summary judgment. For the reasons that follow, that motion is DENIED.


Hicks's Employment as a Maintenance Mechanic Hicks is an African American. He began work with the District as a maintenance mechanic at the Central Garage on September 1, 2006; he remained in that position until September 11, 2008, at which time he was relocated and demoted to serviceman II. (R.53 ¶¶1-2, 50.) Hicks's supervisor (at one remove) throughout his employment at the Central Garage was Thomas Thompson, maintenance supervisor III. (Id. ¶3.)

During the two years that Hicks worked as a mechanic, he received a total of twenty eight disciplinary write-ups. (R.53 ¶57.) In his affidavit, Thompson testified that he took this repeated disciplinary action against Hicks because, in his judgment, Hicks was an unqualified mechanic who took an inordinate amount of time to complete tasks, failed to diagnose and repair vehicles properly, and falsified his timekeeping records.*fn1 (Id. ¶¶11, 59; Aff. Thompson ¶¶4,18, Ex.5.)

Hicks, in turn, has consistently complained that Thompson always treated him differently than nonminority mechanics; Hicks's numerous grievances over the course of his employment attest to his dissatisfactions and, most saliently, to his belief that Thompson filed phony disciplinary write-ups in an attempt to railroad him out of his job. (R.40 ¶8; R.40, Tab 4-E.)

Among Hicks's grievances were the following: he was only allowed to work on trucks, never cars, and only on old clunkers at that (R.40 ¶11; Dep. Hicks at 30:2-5, 44:6-11; Aff. Hruska ¶50); his exclusive assignment to old, shabby vehicles was never taken into account when he was disciplined for requiring excessive time to complete his assignments (R.40, Tab 4-D at 2), nor was the fact that he was relegated to working on the floor while other mechanics were allowed to work on a rack (R.40 ¶12; Dep. Hicks at 29:25-30:2); he had to request that needed parts be ordered, whereas nonminority mechanics could order their own parts (R.40 ¶14; Dep. Hicks at 38:7-20); lastly, Hicks was told by co-workers that nonminority mechanics were often not required to submit daily work reports, whereas his were obsessively scrutinized and compared to his final work orders. (R.40 ¶¶22, 28; Dep. Hicks at 123:15-20; 126:7-10.) Furthermore, Hicks complained that the standards against which he was supposedly judged were never explained to him, leaving him in the dark as to how to do his job. (R.40 ¶6; R.40, Tab 4-D at 2.) Nevertheless, Hicks concedes that he was never assigned any task that was not within his duties as a maintenance mechanic. (R.53 ¶58; Dep. Hicks at 45:19-22.)

Hicks's Disciplinary Record

The County of Cook Personnel Rules govern the disciplinary process against employees accused of improper conduct or poor work performance. (Id. ¶¶5-6.) They specify that discipline must generally progress from an oral warning (first offense) to a written warning (second offense) to suspension (third offense) to termination (fourth offense); but for major infractions, which includes falsifying time sheets, time cards, or other records, progressive discipline does not apply. (Id. ¶¶7-8.) As a member of Teamsters Local 726, Hicks was subject to the collective bargaining agreement between the District and Local 726, effective January 1, 2005 through December 31, 2008, which entitled members of Local 726 to union representation in any disciplinary proceedings brought against them. (Id. ¶¶4, 9; Aff. Sanchez-Bass, Ex.1 § 6.) A Local 726 member who is dissatisfied with discipline administered by the District may grieve the discipline up to and through formal arbitration. (R.53 ¶10.)

The record contains several of Hicks's disciplinary reports,*fn2 including one dated July 7, 2008, in which Thompson confused Hicks with Gronimo Hernandez, the other minority mechanic in the Central Garage against whom Thompson also appears to have filed numerous, similar disciplinary write-ups. (R.40 ¶17; R.40, Tab 4-J.)

The earliest form in the record is dated December 8, 2006. Thompson cited Hicks for "less than satisfactory" job performance. (R.53 ¶12; Aff. Thompson, Ex.1.) The gist of the complaint was that Hicks needed an unreasonable amount of time to complete the work on vehicle M9906 and reported that the vehicle's brakes were fine even though he had not test driven the vehicle because it was "too cold outside." (Id. ¶13-14; Aff. Thompson, Ex.1.)

On June 27, 2007, Thompson again filed a disciplinary report against Hicks for failure to properly diagnose and repair a vehicle, this time garbage truck G200, which had been assigned to Hicks on June 7. (R.53 ¶¶15-18; Aff. Thompson, Ex.2.) Hicks spent "several days" repairing the vehicle; the driver who picked it up got as far as the door of the garage before noticing that the truck was not functioning properly and returning it to Hicks. (Id. ¶16.) The truck was brought to Hicks a total of four times; he worked on it for a total of 177.75 hours. (Id. ¶17.)

On June 23, 2008, Thompson cited Hicks for two infractions, including falsifying records by not accurately recording the time he worked on truck C301. (Id. ¶24; Aff. Thompson, Ex.4.) The basis for this charge was a disparity in the time Hicks recorded for this assignment on two sets of forms: his daily work reports (daily logs on which mechanics record the time spent on each repair to a given vehicle) indicated that he spent 44.5 hours working on C301, while his work order (a summation of time spent and parts used on a given vehicle) indicated that he worked either 21.75 or 27.75 hours; the second digit is not legible. (Id.; R.53 ¶21, 22, 25; Aff. Thompson, Ex.4.) The hours a mechanic records for a particular vehicle on these two sets of forms should match. (R.53, ¶23.) Hicks maintains that his daily work reports were accurate, and that he was not allowed to review them when filling out his work orders at the completion of a repair job. (R.40 ¶5, 22; R.40, Tab 4-D at 2.) C301 was out of service for nearly a month, whereas Thompson believed it should only have required a couple of days to repair. (R.53 ¶28.) Thompson also cited Hicks for beginning work on a vehicle without authorization. (Id. ¶29.)

The June 23, 2008 write-ups were the subject of a disciplinary hearing on August 1, 2008, before P. Scott Montgomery. (Id. ¶30; Aff. Thompson, Ex.3.) Management sought to have Hicks suspended for two weeks based on these violations. (R.53, ¶31.) Noting that Hicks's disciplinary record included a verbal warning in November 2007 and written warnings in March and April 2008, Montgomery concluded that Hicks should be suspended for three days without pay, which he was. (Id. ¶¶32-33; Aff. Thompson, Ex.3 at 2.)

Almost immediately after that, on August 11, 2008, Thompson cited Hicks again, this time for three infractions: "negligence in performance of duties," a major cause infraction; "falsification of employment records or any other county records," also a major cause infraction and the same charge that was presented at the August 1, 2008 disciplinary hearing; and "perform[ing] at less than a satisfactory level in any job classification." (R.53 ¶34-35; Aff. Sanchez-Bass, Ex.4.) The first and third charges concerned Hicks's alleged inability to properly diagnose and repair the vehicles assigned to him. (R.53 ¶36, Aff. Thompson, Ex.5.) As for the second charge, Hicks filed a grievance with the District-in fact, he filed several more-or-less contemporaneous grievances-noting the repeated pattern of charging him with falsifying documents, maintaining that it was Thompson who was "falsifying" documents (namely, the disciplinary reports), and asking for "this petty nonsense to stop." (R.40, Tab 4-E.) The three August 11, 2008 disciplinary write-ups "were never processed to completion." (R.53 ¶37.) After they were filed, Jack Hurley, Hicks' union representative, contacted Carmen Sanchez-Bass, the director of human resources, and asked if anything could be done for Hicks short of termination; Sanchez-Bass said that she would look into it. (Id. ¶38.)

Hicks's Demotion to Serviceman II

On September 9, 2008, Hicks's future with the District was the subject of a meeting at the District's main office. Hicks was present, along with Hurley, Sanchez-Bass, Keino Robinson (senior attorney), Leroy Taylor (maintenance superintendant III), Frank Mole (assistant maintenance superintendant III), and William Helm (executive assistant to the superintendant). (Id. ¶39.) Robinson told Hicks that management felt his job performance was unsatisfactory. (Id. ¶41; Dep. Hicks at 93:4-6.) Sanchez-Bass told Hicks that after reviewing the record of his job performance, management thought he would be better suited to a serviceman II position. (Id. at 93:11-94:1.) Robinson explained Hicks's options: he could take the serviceman II position and the District would "get rid of the last three write-ups;" or Hicks could refuse the offer and challenge the write-ups at another hearing, in which case the District would pursue disciplinary sanctions and "push toward termination." (Id. at 96:10-17; R.53 ¶49.) Hurley asked to confer with Hicks outside and advised him, "They are not trying to fire you. . . They are offering you a way out;" Hicks responded that he needed time to discuss the situation with his wife. (R.53 ¶45; Dep. Hicks at 94:18-95:6.) The District gave Hicks until the following day to respond, at which time Mole and Rick Bono approached Hicks and asked for his decision. (Id. at 96:20-97:3.) Hicks responded that the offer was "an insult," but nevertheless accepted, citing the economy and his need to preserve his insurance. (Id. at 97:19-22.) Hicks then signed a letter, prepared by Sanchez-Bass, acknowledging his demotion to serviceman II, effective September 12, 2008.

(R.53 ¶¶48, 50; Aff. Sanchez-Bass, Ex.6.) His new pay of $20.426/hr was approximately $9/hr less than he made as a maintenance mechanic, and instead of repairing automobiles, he would cut grass, trim trees, plow snow, and perform other such "landscaping work." (R.53 ¶48; R.40 ¶13.) Hicks is still employed as serviceman II and has not received any disciplinary write-ups in this position. (R.53 ¶¶60-61.) The District ...

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