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Dr. Fred Nance, Jr v. Michael Rothwell

May 9, 2011

DR. FRED NANCE, JR., PLAINTIFF,
v.
MICHAEL ROTHWELL, ROGER E. WALKER, ROD BLAGOJEVICH, MICHAEL SHIELDS, LESLIE BALONICK,
JIM CARR, SANDY SMITH, MELINDA GUBBELS, KYRA PETERS, CHARLES TRUITT, JERRY BUSCHER, DEANNE BENOS, HENRY BAYER,
JOHN DINICOLA, EACH IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES,
ILLINOIS DEPARTMENT OF CORRECTIONS, DISTRICT COUNCIL 31 OF THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, AFL-CIO, AND WESTCARE FOUNDATION, INC., DEFENDANTS.



The opinion of the court was delivered by: Judge Feinerman

MEMORANDUM OPINION AND ORDER

Plaintiff Dr. Fred Nance, Jr., brought this action against WestCare Foundation, Inc. ("WestCare"), the Illinois Department of Corrections ("IDOC"), District Council 31 of the American Federation of State, County and Municipal Employees ("AFSCME"), and three groups of individuals. The first group consists of state officials and employees: Michael Rothwell, Warden of Sheridan Correctional Center ("SCC"), the IDOC facility where Nance was assigned to work by WestCare, his employer; Roger Walker, the IDOC Director; Rod Blagojevich, the Governor of Illinois; Charles Truitt, a security officer at SCC; and Deanne Benos and Jerry Buscher, both IDOC Assistant Directors. The second group consists of WestCare employees: Michael Shields, the Director of Human Resources; Leslie Balonick, the Midwest Regional Vice President; Jim Carr and Sandy Smith, both Assistant Directors; Kyra Peters, a supervisor; and Melinda Gubbels, a counselor. The third group consists of AFSCME officials: Executive Director Henry Bayer; and John DiNicola, an union agent.

Nance filed suit on December 14, 2009, and filed an amended complaint on April 12, 2010. On April 21, 2010, the court dismissed Nance's amended complaint for failure to comply with Federal Rule of Civil Procedure 8(a) and ordered him to file a second amended complaint. Doc. 48 (Hibbler, J.). The court noted that the amended complaint numbered 606 paragraphs and 104 pages, and warned that if the second amended complaint failed to be "short and plain," as required by Rule 8(a), the case would be dismissed with prejudice. On May 2, 2010, Nance filed a second amended complaint, which weighs in at 277 paragraphs and forty pages. Doc. 52. Nance purports to state claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; the Equal Pay Act, 29 U.S.C. § 206(d); 42 U.S.C. § 1981; 42 U.S.C. § 1983; and Illinois law.

Defendants have moved to dismiss the second amended complaint. The motions filed by Blagojevich and the AFSCME Defendants are granted, while the motions filed by the IDOC Defendants and the WestCare Defendants are granted in part and denied in part.

Background

The facts alleged in the second amended complaint (Doc. 52) are assumed true on a Rule 12(b)(6) motion. See Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010). The following sets forth the facts as favorably to Nance as permitted by the complaint.

A. AFSCME Membership and the June 2006 Strike

In May 2006, Nance, an African-American, was hired by non-party Gateway Foundation, an IDOC vendor retained to provide counseling services to prisoners at SCC. Nance soon was approached by AFSCME agents who urged him to join the union, but Nance declined. In midMay 2006, Nance received a call at his home from AFSCME representative DiNicola, demanding that Nance join the union and wear its "paraphernalia" and threatening retaliation if Nance did not comply.

On June 5, 2006, Nance received a call informing him that AFSCME was going to strike at SCC and that he would not be allowed to cross the picket line. The strike began on June 6, and IDOC and AFSCME allowed some employees, but not Nance, to cross the line. Nance wrote a letter to Governor Blagojevich regarding the strike, sent a copy to IDOC Director Walker, and posted it on his blog, http://clickforjusticeandequality.blogspot.com. On June 14, 2006, Nance reported for work and was told he was not cleared to enter the facility. Nance asked to speak with Warden Rothwell, who informed him that his security clearance had been revoked. IDOC Assistant Director Buscher confirmed what Rothwell had said. The strike ended in early September 2006, and Nance was allowed re-entry to SCC.

B. Discipline and Harassment Charges Against Nance

AFSCME members intimidated, harassed, and threatened Nance at a September 8, 2006, meeting conducted by a female IDOC officer and an AFSCME member named Breese. After Nance complained to Breese, Breese falsely accused him of being insubordinate. Nance filed three IDOC incident reports with SCC complaining of retaliatory acts against him by union members. Nance filed a similar complaint with the NLRB.

In mid-December 2006, Nance informed his then-supervisor, Jerry Pomush, that he had to work late two nights while other employees had to work late only one night. Nance filed a grievance with WestCare, which in November 2006 had replaced Gateway as the vendor of counseling services at SCC, alleging discrimination and harassment and seeking protection from retaliation by Pomush. On January 31, 2007, Pomush intimidated and threatened Nance by investigating another counselor's false claim against him. On February 2, 2007, an inmate told Nance that he had filed a grievance against Nance at Pomush's direction. In response, Nance filed a grievance with WestCare against Pomush.

In August 2007, IDOC officers filed an IDOC incident report against Nance. Nance told WestCare Director Harold Parker that the report was retaliatory. Later that month, Balonick (WestCare's Midwest Regional Vice President) and Carr (a WestCare Assistant Director) told Nance that he would receive a disciplinary write-up for opening another staff person's interoffice mail. Nance's predecessor committed the same transgression, but did not receive a write-up.

On November 8, 2007, Gubbels (a WestCare counselor) and Peters (a WestCare supervisor) filed sexual harassment charges against Nance. A month earlier, Gubbels, an AFSCME member and Nance's subordinate, became insubordinate and disrespectful to Nance. When Nance conducted Gubbels' yearly evaluation on November 2, 2007, Gubbels told him that she would "create a bad environment" for him and to "wait to see what happens to you. You won't be a supervisor here too long[,] remember, none of the union members like you." Doc. 52 at ¶¶ 139-40. After the sexual harassment charges were filed, WestCare refused to give Nance information about them, placed him on paid administrative leave while the allegations were investigated, ordered him to leave SCC immediately, and embarrassingly escorted him out. Nance filed a grievance and sent a letter to Shields, WestCare's Director of Human Resources, claiming that the charges were false and resulted from discrimination.

On November 15, 2007, WestCare Director Stanley Brooks sent Nance an email requesting that he report to work the next day to address the harassment allegations. Brooks informed Nance that Gubbels and Peters would attend the meeting, as would Shields, Carr, and Brooks. The meeting, which neither Gubbels nor Peters attended, resulted in a finding that the harassment allegations were not substantiated. Gubbels and Peters faced no reprimand for their false accusations, and when Nance requested that Gubbels be transferred to another building, Shields and Balonick refused. In the four months following the harassment allegations, Nance filed many grievances and IDOC reports alleging discrimination and retaliation.

On April 12, 2008, Robin Forsyth, an IDOC correctional officer and AFSCME member, filed a false IDOC incident report against Nance. Because of that report, WestCare transferred Nance to another building where the inmates were more hostile and aggressive.

C. Interference with Nance's Blog

On January 17, 2007, Nance wrote a letter to AFSCME Director Bayer regarding an allegation of discrimination and retaliation that had been made by others against Isaac McDaniel. Nance posted the letter on his blog. Two days later, SCC security officer Truitt accused Nance of meeting with McDaniel on state property in an effort to impede an ongoing investigation. Truitt interrogated Nance, threatened to take his security clearance, and told him that writing the letter and posting it on his blog interfered with an ongoing investigation and violated an IDOC Administrative Directive. Truitt told Nance that he had been reviewing Nance's blog since June 2006, and stated that if Nance removed the letter and the postings regarding the strike, Truitt would not revoke Nance's security clearance.

D. Failure of WestCare and IDOC to Investigate Nance's Grievances

On March 16, 2007, Nance filed a grievance with WestCare, and submitted an incident report to IDOC, charging Wendy Mattingly with sexual harassment and defamation. Neither WestCare nor IDOC followed up. Unlike Nance, Mattingly was not placed on leave upon being accused of harassment. On May 28, 2007, Nance filed a grievance with WestCare and Balonick, citing retaliatory acts by a supervisor. The grievance was not addressed by WestCare or Balonick.

E. Failure to Promote

On October 1, 2006, WestCare informed Gateway's employees at SCC that it soon would replace Gateway as the counseling services vendor at SCC, and that all staff members would have to reapply for their positions. On October 14, 2006, Nance applied for an assistant director or supervisor position, a promotion over the counselor position he then held. On November 1, 2006, when WestCare's tenure at SCC commenced, WestCare and AFSCME entered into an agreement to begin the process of unionizing all non-supervisory employees, and WestCare told Nance that he could apply only for a counselor position. Linda Gaston-Rowe, an African-American female, was given a supervisor ...


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