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Freddie Higgins v. Cynthia Moreno and Kim Peck

June 14, 2011


The opinion of the court was delivered by: Sue E. Myersough U.S. District Judge


Wednesday, 15 June, 2011 08:16:07 AM

Clerk, U.S. District Court, ILCD


This matter comes before the Court on Defendants Cynthia Moreno and Kim Peck's Motion for Summary Judgment (d/e 22). For the reasons stated below, the Motion for Summary Judgment is GRANTED.


A. Background Facts and Events Leading to Plaintiff's Termination Plaintiff was employed by DCFS as the Northern Regional Education Transition Coordinator in the Office of Education Transition Services. Peck supervised Plaintiff and Moreno supervised Peck.

Between December 2001 and January 2005, Peck's evaluations of Plaintiff's job performance stated his work was "accomplished". Between December 31, 2004, and January 1, 2006, she rated his performance as "acceptable". Unhappy with this lesser rating, Plaintiff entered Peck's office on February 1, 2006, and told her that he was filing a grievance against her because he was dissatisfied with the performance evaluation. Peck allegedly responded by elbowing Plaintiff in the groin.

On February 2, 2006, Plaintiff called the Peoria Police Department to report the groin incident. Charges were never filed against Peck for the incident. Peck denied that she ever elbowed Plaintiff in the groin.

Prior to the groin incident, Peck asked Plaintiff to send her a copy of a memo (a/k/a notice) concerning his monthly visits to DCFS' Northern Region field offices. When Peck inquired with Plaintiff about why he had not sent the memo, Plaintiff claimed he had been very busy but had sent her a copy. Peck sought to verify Plaintiff's claim by accessing his email account. Review of Plaintiff's email showed Plaintiff had sent and received numerous personal emails via his government-issued computer and email account. Several of those emails contained nude images.

On February 10, 2006, Peck contacted David Hoover, a labor relations specialist for DCFS, about Plaintiff's email. Peck believed the email violated DCFS policy. Peck turned the email over to Pete Wessel, a Labor Relations Specialist for DCFS. Wessel drafted disciplinary charges against Plaintiff for: (1) Falsification of Information; (2) Misuse of Time and Property; and (3) Noncompliance With a Supervisory Directive. Since Plaintiff had received a 30-day suspension in 2000 and a 45-day suspension in 2001, the 3 new charges meant another possible addition to Plaintiff's disciplinary record.

The Falsification of Information charge was based on emails from Plaintiff dated February 9, 10, and 14, 2006. In those emails, Plaintiff told Peck he complied with her directive by sending a revised memo to the Northern Region DCFS offices. Wessel's review of the emails showed that Plaintiff had not sent the revised memo out until February 27, 2006. Wessel concluded that this conduct violated § 3.1 (Professional Conduct), § 3.10 (Code of Ethics), § 3.16 (Falsification of Records) of the DCFS Employee Handbook, and the Policy Guide (Prohibition of Falsification of Records).

The Misuse of Time and Property charge was based on Plaintiff's receipt and dissemination of personal emails via his government issued computer and email account. The emails which led to his termination are categorized as follows: (A) November 2005 to February 2006 emails containing nude images; (B) September 2004, October and November 2005, and January 2006 emails referring to Peck and Moreno as "Curly" and "Moe"-members of the "Three Stooges"-and insinuating they had a lesbian relationship*fn2 ; and (C) emails Peck sent to Plaintiff that Plaintiff forwarded to unauthorized employees. Wessel reviewed all of the email and concluded that Plaintiff's conduct violated § 2.1 (Daily Time), § 3.1 (Professional Conduct), § 3.10 (Code of Ethics), § 3.19 (Use of State Equipment) of the DCFS Employee Handbook, the Policy Guide, and Administrative Procedure #20 (Electronic Mail/Internet/SACWIS Search Function).

The Noncompliance With a Supervisory Directive charge was based on Plaintiff's failure to email his co-workers copies of his weekly itinerary as Peck had told him to do in February 2006. Wessel found Plaintiff's noncompliance violated § 3.1 (Professional Conduct) of the DCFS Employee Handbook and Policy Guide.

Wessel determined that the charges warranted dismissal. He and Moreno both recommended dismissal to Tom Berkshire, the labor relations person who decided the appropriate level of discipline. Peck made no recommendation on the issue. On June 13, 2006, Plaintiff was discharged. Plaintiff successfully challenged his termination before Illinois' Civil Service Commission. On February 2007, Plaintiff was reinstated and given full back pay.

B. The Instant Lawsuit and Related Allegations On June 9, 2008, Plaintiff sued Peck and Moreno under 42 U.S.C. § 1983, claiming they fired him because he was an African American male. At all times relevant to his Complaint, Plaintiff was one of six transition coordinators working under Kim Peck in the Office of Education Transition Services. These individuals were: Gayle Simpson (African American female); Angela Foster (African American female); Ken Broady (African American male), John Kasper (Caucasian male); Johnny Williams (African American male); and Plaintiff. Plaintiff alleged that African American males were given directives to complete training sessions, but they were not disciplined when the training was not completed. Moreno and Peck allegedly gave Plaintiff, Johnny Williams, Holly Bitner-Duck, Angela Foster, and Lori Moreno a 2-3 month deadline to complete training sessions in various DCFS offices. Plaintiff and Johnny Williams completed the training sessions on time. Holly Bitner-Duck, Angela Foster, and Lori Moreno failed to meet the deadline, but they did not receive discipline. Moreover, Plaintiff alleged that Defendants gave him an unreasonably short period of time to master a software program which Johnny Williams, an African-American male, developed. However, Defendants state that training for the software program was never even sanctioned by DCFS.

Plaintiff also contends that Peck "denigrated" and "antagonized" him during various meetings in 2005. During a phone conference on December 18, 2005, Peck accused Plaintiff of being unprepared for the conference with a new service provider. A few days later, Plaintiff alleges that Peck was again "antagonistic" towards him during a meeting with the Community College Board. Again, at this meeting Peck told Plaintiff that he was unprepared.

Plaintiff further alleges that Defendants' behavior toward Pat Palmer, a Caucasian female employee, when compared with their behavior towards him and other African American employees, proves race discrimination. Pat Palmer was a personal services contract employee that reported directly to the business manager at one time, but later went to work on the Northern Illinois University (NIU) contract, which made her an employee of the University itself. Palmer later obtained her degree and became the statewide coordinator of the education and training voucher program and the community college payment program.

After Dwight Lambert retired from his position as the Central Region Transition Education Manager Coordinator, Plaintiff became responsible for certain job duties formerly required of Lambert. Some of the contract work that Lambert had been responsible for, including the Education Training Voucher Program and the Illinois Community ...

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