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Jackson v. Cerpa

August 19, 2010

DARRYL W. JACKSON, ET AL., PLAINTIFFS,
v.
PAUL CERPA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

DWJ Petroleum ("DWJ") and its owner Darryl Jackson (collectively "Jackson," treated after this sentence as a singular noun) have brought this action against the Illinois Department of Transportation ("Department"), former Department employees Paul Cerpa ("Cerpa") and Gilbert Villegas ("Villegas") and former Department Secretary Timothy Martin ("Martin"). Jackson claims that Cerpa, Villegas and Martin (1) intentionally discriminated against him in their individual capacities in violation of 42 U.S.C. §1983*fn1 and (2) interfered with his contractual rights and prospective economic advantage in violation of Illinois common law. Jackson also claims that Department intentionally discriminated against him in violation of Title VI of the Civil Rights Act of 1964 (Section 2000(d)).*fn2

All defendants have moved for summary judgment on all remaining counts pursuant to Fed. R. Civ. P. ("Rule") 56.*fn3 For the reasons stated below, their motion is granted in part and denied in part.

Standard of Review

Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts consider evidentiary records in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). What follows in the Factual Background section, then, is a summary of the facts viewed from a pro-Jackson perspective.

But to avoid summary judgment a non-movant must produce more than "a mere scintilla of evidence" to support his position that a genuine issue of fact exists (Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)) and "must come forward with specific facts demonstrating that there is a genuine issue for trial" (id.). Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Factual Background

Jackson, an African-American man, is the sole owner, employee and shareholder of DWJ Petroleum, Inc., an Illinois business incorporated in 2001 (D. St. ¶¶2-3). As a minority small business owner, Jackson was eligible to participate as a certified Disadvantaged Business Entity ("DBE") in an affirmative action contracting program administered by Department (J. Resp. 1, 3). Department's DBE program, the constitutionality of which was upheld in Northern Contracting, Inc. v. Ill., 473 F.3d 715 (7th Cir. 2007), exists as part of a United States Department of Transportation regulatory scheme affecting all federally-funded highway projects (J. Resp. 3-4). Jackson's complaint arises from events taking place in 2005,*fn4 following his bid to perform subcontractor work on one such federally-funded program: Department's reconstruction of the Dan Ryan Highway (D. St. ¶¶7-23).

Described by Martin in his affidavit as "the most costly highway reconstruction project in IDOT's history," the Dan Ryan project involved portions of Interstates 90 and 94 running through the south side of Chicago, a predominantly African-American community (D. St. ¶13). As such, the project was subject to scrutiny from elected community representatives and activists who wished to maximize African-American participation through the DBE program (id. ¶14).

Department divided the Dan Ryan project into numerous separate contracts that it put out to bid, and Walsh Construction ("Walsh") was the winning bidder on two contracts covering the northbound and southbound express lanes (the "1X/2X project")(D. St. ¶¶18-19). As the prime contractor on a federally funded project, Walsh had to meet the project's DBE participation goals by allocating a sufficient amount of work to DBE subcontractors (id. ¶¶7-8). About October 31 Walsh submitted its DBE utilization plans ("U-Plans") to Department, identifying Jackson as the proposed subcontractor tasked with furnishing and installing reinforced steel rebar in concrete pavement for a total price of $7.2 million (id. ¶¶21-23, J. Resp. 5). Although Jackson was Department-certified in "Miscellaneous Concrete," he was not certified to do rebar work and had never before purchased rebar (D. St. ¶¶33-34).

In early November Cerpa and Villegas became aware of the U-Plan that included Jackson (D. St. ¶35, Ex. D, J. Resp. 5).*fn5

Several e-mail exchanges took place among the two and other Department employees and consultants. On November 7 Villegas told Cerpa in an email that Jackson "hit the lotto with a 17 [sic] million dollar contract on the u-plan" (J. Resp. 5). Cerpa responded, saying "that firm isn't gonna work if its DMJ [sic] Petroleum" and stating that "CTA denied this firm fronting for a petroleum mogul" (id. 5-6).*fn6

Around that time Jackson was required to attend a meeting with Department's supportive services (id. 6-7).*fn7 Villegas met with Jackson at Department's Resource Center, "where he put Jackson in touch with one of IDOT's technical consultants" (id.). After that meeting Villegas told Mark Bennett ("Bennett"), another Department employee, that Jackson "can not bankroll this project" and "we got to nip this and get some proven DBE's [sic] in there" (J. Supp. Resp. 10). Two days later Cerpa wrote to Bennett that "DWJ and Rohar*fn8 I'm certain are destined to follow the same fate of the others [sic] inability to perform" (id. 5). But Carol Lyle ("Lyle"), Cerpa's subordinate in charge of assessing U-Plans and administering the DBE program, told fellow employee Bennett--and possibly Villegas and Cerpa--that in her opinion Jackson should be approved to work on the 1X/2X project (J. Resp. 9).

On November 28 Villegas followed up with Jackson regarding their meeting at the Resource Center and asked Jackson to submit a work plan and breakdown of his bid unit pricing "as soon as possible" (J. Supp. Resp. Ex. L at 2). That information is not normally required of other DBEs (J. Resp. 6-7). On November 29 both Villegas and Cerpa wrote repeatedly to Department's support services consultants, requesting information about Jackson's (and Rohar's) work plans, managerial experience, resources and capacity (J. Supp. Resp. Ex. L at 1, 3-4; J. Resp. 6).

Approximately one month after Walsh had submitted the U-Plan listing Jackson as a DBE, Cerpa told Villegas and other subordinates that in his opinion Jackson should not be approved (J. Resp. 9). By his own admission, Cerpa lacked the authority either to approve or to disapprove the DBE (id.). On that same day Bennett speculated to Villegas that Walsh would replace Jackson with a white-woman-owned DBE, stating that "we are in uncharted and shark infested waters" because "we left the security of the regulations as a map" (J. Resp. 8).*fn9

Events came to a head in a telephone conference call (date unknown) involving several Department employees (including Martin, Bennett, Lyle and possibly Cerpa), Walsh Vice President Steven Kehle ("Kehle") and Walsh Program Manager David Shier ("Shier")(D. St. ¶45, D. Sur. Mem. 5). Department asserts that Walsh was asked to reduce the size of Jackson's subcontract, a suggestion that Walsh rejected as not feasible (D. Mem. 3). But Shier's testimony does not support Department's version.*fn10 In any event, by the end of the call Walsh understood that their U-Plan would not be approved with Jackson as a DBE subcontractor performing rebar work (D. St. ¶47).*fn11

Lyle has testified that had Jackson not been subjected to the additional scrutiny described above, there is a "strong likelihood" that he would have been approved as a DBE subcontractor on the 1X/2X project (J. Resp. 8). Defendants concede that Jackson's participation in the U-Plan received "extra scrutiny," but they assert that it was due to their concerns about his qualifications (D. Mem. 2-3). Walsh, on the other hand, believed that installing rebar "was not difficult work" (D. St. Ex. G at 78), and Kehle testified that rebar installation was "something that could easily be picked up and a skill that could be quickly learned" because it was "primarily laborer work...bull work" performable by unskilled laborers (D. St. Ex. H at 61).*fn12 Bennett held similar views, telling Cerpa and Villegas that "DWJ's portion [of the contract] is pretty straightforward, labor only" (J. Supp. Resp. 4) and that "[t]his is not difficult work..." (J. Resp. Ex. I at 5).

In addition to the timeline of events surrounding Department's denial of the U-Plan containing Jackson, the record contains several other relevant facts speaking to defendants' asserted racial animus. First, Cerpa is said to have referred to Jackson as a "pimp" (D. Mem. 6) or possibly a "nigger pimp" (D. Sur. Mem. Ex. A at ΒΆ26) at some point, though that assertion does not speak to the date or context for that utterance. Second, evidence is offered that Villegas and Cerpa orchestrated the termination of Brenda Gold, a long-time African-American EEO officer, for racially discriminatory reasons (J. Supp. Resp. 9 and Ex. N at 11). Finally, there is testimony that Villegas and Cerpa pursued a "Hispanic agenda" (D. Mem. 7) while at Department: Current Department employee Dante Buonaguide ...


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