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Rodgers v. White

November 23, 2010


The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge


This case is before the court for ruling on the Motion for Summary Judgment (#33) filed by Defendants Jesse White, Donna Mulcahy Fitts, and Stephen J. Roth. This court has carefully reviewed Defendants' Memorandum of Law and supporting exhibits (#34), and the Memorandum of Law in response (#38, #39) and exhibits (#40-42) filed by Plaintiff, Mark P. Rodgers. Following this careful and thorough review, Defendants' Motion for Summary Judgment is GRANTED.


Jurisdiction of this court is premised on 28 U.S.C. § 1331, federal question jurisdiction. Plaintiff has filed the instant action pursuant to 42 U.S.C. §§ 1981, 1983, and § 2000(e) (Title VII).


Plaintiff, an African-American, began working for the Illinois Secretary of State in 1985 as a member of the Yard Maintenance Crew (YMC) in the Department of Physical Services. Plaintiff was the only African-American employee in the Yard Maintenance Crew during the entire relevant period. On October 1, 1989, Plaintiff was promoted to Yard Maintenance Supervisor. Between 2003 and 2006, Plaintiff reported to David Rusciolelli, who was the Lead Yard Maintenance Supervisor. On August 8, 2006, Plaintiff was suspended from employment pending discharge, as a result of a series of alleged violations of Secretary of State policy. Plaintiff filed an appeal of the charges, which was denied on September 6, 2006.

On September 7, 2006, Plaintiff was discharged from employment by Defendant Roth, who was the Director of Personnel for the Office of the Secretary of State. Roth relied on a report from the Office of the Inspector General (OIG) following an investigation into Plaintiff's behavior, and a request and recommendation from Defendant Fitts. Defendant Fitts was the Director of the Department of Physical Services and thus Plaintiff's ultimate supervisor. Both the recommendation and the OIG report included charges pertaining to two incidents: first, an incident involving a lawn aerator belonging to the Secretary of State that had been borrowed by an employee; and second, an incident involving the recording and tracking of compensatory time accrued by YMC employees. In addition to the two incidents that officially contributed to Plaintiff's discharge, there was another conflict between Plaintiff and Fitts that did not officially contribute to the discharge.

The same day Plaintiff was discharged, he filed a charge of discrimination with the Illinois Department of Human Rights and EEOC, alleging that Fitts and Roth harassed him, and that Roth discharged him because of his race. Plaintiff also grieved his discharge. An arbitration proceeding was held, pursuant to the collective bargaining agreement (CBA). The arbitrator found that the evidence presented was insufficient to clearly and convincingly prove that Plaintiff was guilty on six of the seven charges. After the arbitration, Plaintiff's discharge was rescinded, and Plaintiff's employment was reinstated, with compensation for lost wages. As of the filing of this action, Plaintiff was employed as a storekeeper for the warehouse of the Support Division for the Department of Physical Services. On July 29, 2008, Plaintiff filed suit alleging race discrimination in violation of 42 U.S.C. 42 U.S.C. §§ 1981, 1983, and § 2000(e) (Title VII).

A. Lawn Aerator Incident

In 2005, Jon Greeley, a member of the YMC, took a state-owned lawn aerator to aerate the private property of a friend. Using State property for personal purposes was a violation of State rules. Plaintiff told another employee, Jarrod Perce, to retrieve the aerator. The parties dispute whether Plaintiff knew that the aerator was located at a private residence, or whether he intended for Perce to simply retrieve the aerator from its proper storage location.

After an investigation, the OIG issued a report on October 24, 2005, concluding that Plaintiff had supervisory authority and had known and allowed employees to use state property for personal reasons. In response, the Department of Physical Services requested that Plaintiff be placed on suspension for 18 days as a result of this incident. However, due to a change in the Director's position from Cecil Turner to Fitts, the suspension was delayed. It is not clear from the record and briefs whether Plaintiff was actually suspended. Greely was discharged for taking the aerator and because he did not have a valid driver's license, which was required to properly perform his job. Perce was given a three-day suspension for retrieving the aerator while on State time, although Plaintiff testified that Perce told him that the suspension was never actually imposed.

In the subsequent 2006 investigation, the OIG charged Plaintiff, in regard to this incident, with knowingly permitting the employees under his purview to misuse State equipment for personal reasons; failing to act promptly and properly upon discovering that the equipment had been borrowed; and making false statements to OIG personnel during the investigation. At the arbitration following Plaintiff's discharge, the arbitrator concluded that (1) not only did Plaintiff lack the degree of supervisory authority requisite to permit other employees to borrow State equipment, but also that (2) the evidence did not clearly and convincingly support the charges that Plaintiff had either (a) given permission, in general, to borrow State equipment, or (b) known that the aerator had been borrowed.

B. Timekeeping Incident

In 2002 or 2003, the former Chief of Staff for the Secretary of State, Tom Benigno, prohibited employees from working overtime unless specifically authorized to do so. Because the work performed by the YMC was, by its nature, highly unpredictable, such as shoveling snow and clearing walkways in the winter, it would be impossible to completely avoid overtime work. Cecil Turner, who was, at the time, the Director of the Physical Services Department, reached an understanding with the employees and the union that overtime work would be recorded as compensation time on an independent timesheet, affording employees paid time off in lieu of overtime pay. Plaintiff and Bob Deffenbaugh reported directly to David Rusciolelli. Both Plaintiff and Deffenbaugh were responsible for (1) directing the work flow of the other YMC employees; (2) ensuring that the other employees performed their duties; (3) manually recording overtime work on the independent timesheet; and (4) granting permission to use accumulated overtime hours. Both Plaintiff and Deffenbaugh performed the same supervisory functions under the direct supervision of Rusciolelli.

After Fitts replaced Turner in November 2005, Fitts investigated the timekeeping practices of the YMC. Fitts refused to allow the alternate timekeeping method to proceed under her governance. The union representative, Bob Ward, expressed the concern whether, even if Fitts eliminated the alternate timekeeping method on a going-forward basis, employees would be appropriately compensated for previously-worked time. Fitts and Ward could not come to an acceptable agreement regarding the previously-worked time, and consequently, Ward filed a grievance against Roth and Fitts. Fitts demanded the original records, which both Plaintiff and Ward did not wish to surrender in order to retain them for evidentiary and paper-trail purposes. Plaintiff then made copies for himself and Ward while being supervised and observed by Ward, and gave the originals to Fitts. At several instances afterward, Fitts indicated that her set of originals was not complete, so at each occasion, Ward made a copy of his copy and gave them to Fitts to supplement her set. After receiving copies from Ward's set, Fitts became satisfied with the integrity of the records. An independent audit conducted by the Department of Personnel found that Plaintiff's calculations and timekeeping had been correct.

On March 1, 2006, after the amount of overtime owed to each employee had been calculated, Plaintiff was told to attend a meeting where he could review the calculations. In addition, Plaintiff was told to inform all the employees who reported to him that they were also required to attend that meeting to review the amount of overtime they had been assigned. The parties dispute whether Plaintiff did in fact tell the other employees that they were required to attend the meeting. Notably, Fitts scheduled the meeting for a time after the end of the work shift. Fitts had no authority, pursuant to the CBA, to order employees to perform any overtime work without an indication that they would be paid for that overtime. Earlier, Fitts had given a directive that there would be no more overtime without her prior approval and two-day's notice. Fitts did not indicate that she had approved overtime pay for the meeting that she scheduled, and thus, neither Plaintiff nor any other employee were ...

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