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Marvin Harrison v. Illinois Department of Transportation

June 21, 2011

MARVIN HARRISON, PLAINTIFF,
v.
ILLINOIS DEPARTMENT OF TRANSPORTATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Marvin E. Aspen, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiff Marvin Harrison has brought a nine-count complaint alleging racial discrimination by his employer, the Illinois Department of Transportation ("IDOT"), and several individuals within IDOT, specifically, Gary Hannig, William Grunloh, Carmen Iacullo, Giovanni Fulgenzi, Steve Travia, Charles Klemz, and Marie Malek-Robinson (collectively "Defendants"). (Compl. ¶¶ 7--18.) Defendants have filed a motion to dismiss the complaint. Their motion is granted in part and denied in part.

I. BACKGROUND

We begin by briefly recounting the allegations in Plaintiff's complaint. Plaintiff has been employed by IDOT in various positions since 1995. (Id. ¶ 19.) Most significantly, Plaintiff served as the Lead/Lead Worker in IDOT's Emergency Traffic Patrol ("ETP") division. (Id. ¶ 20.) In this position, Plaintiff oversaw dozens of IDOT employees charged with responding to accidents and incidents on Illinois highways. (Id. ¶ 34.) Plaintiff claims to be the first and to-date only African American to have held this position in over thirty years. (Id. ¶ 20.) Plaintiff obtained this position pursuant to the settlement of a prior employment discrimination claim he brought. (Id., Ex. A.) See Harrison v. Feliciano, No. 05-C-1944, Dkt. No. 77 at 1--2 (N.D. Ill. June 21, 2007). Plaintiff's involuntary transfer away from this position in the spring of 2010 is the basis for this lawsuit. (Compl. ¶¶ 30--42.)

In August 2009, a few months before his transfer, Plaintiff alleges that one of his subordinates at ETP, a white employee named Ralph Eme, repeatedly used a racial slur to disparage Plaintiff in the presence of some supervisors at ETP. (Id. ¶ 23.) Plaintiff was distressed to learn of Eme's use of the slur-which Plaintiff describes as "the 'n' word"- as well as of the supervisors' failure to report Eme's actions to upper management or to IDOT's Bureau of Civil Rights. (Id.) Ultimately, Plaintiff reported Eme's actions himself and requested an investigation. (Id., Ex. C.)

Although Plaintiff acknowledges that an investigation resulted, he contends that it was both faulty and inadequate. (Id. ¶ 24.) In particular, Plaintiff alleges that a member of IDOT's personnel department, Defendant Giovanni Fulgenzi, oversaw the investigation, even though the investigation should have fallen within the purview of IDOT's Bureau of Civil Rights. (Id.) Plaintiff also complains that the investigation did not yield any disciplinary action against Eme or the supervisors who overheard Eme's statements. (Id.)

Plaintiff also alleges that his reporting of the incident involving Eme had the perverse result of triggering an investigation in to Plaintiff's management of his subordinates. (Id. ¶ 26.) Beginning in January 2010, a few months after Plaintiff reported the incident, Defendant Marie Malek-Robinson of IDOT's personnel department began an investigation in to "personnel issues" at ETP. (Id. ¶ 25.) During this investigation, some of Plaintiff's subordinates began "circulating a 'petition' calling for [Plaintiff's] removal" and others began "'gathering information' about him." (Id. ¶ 27.) "Thus," in Plaintiff's view, "rather than responding to a complaint of a civil rights violations by investigating the employee(s) who were alleged to have engaged in misconduct, IDOT instead instigated an investigation into whether Plaintiff's subordinates were content to work under his authority." (Id. ¶ 26.) On February 5, 2010, Plaintiff filed an internal complaint against Defendant Malek-Robinson because of her investigation, but the complaint was not investigated. (Id. ¶ 27.)

In early March 2010, Plaintiff received a call from Elbert Simon, the head of IDOT's Bureau of Civil Rights, and Ellen Schanzle-Haskins, IDOT's chief legal counsel. (Id. ¶ 29.) Simon and Schanzle-Haskins called Plaintiff to ask him whether he would be willing to transfer from ETP to a position managing an IDOT maintenance yard. (Id.) Plaintiff declined the proposed transfer. In Plaintiff's view, the maintenance yard position had "greatly diminished responsibilities" compared to his position at ETP. (Id.)

Despite Plaintiff's objection, Defendant William Grunloh, IDOT's chief of staff, called Plaintiff on March 22, 2010 to tell him that he was being transferred to the position in the maintenance yard. (Id. ¶ 30.) According to Plaintiff, Defendant Grunloh told him that the transfer would be "temporary and based on operational needs." (Id.) But Plaintiff maintains that Defendant Grunloh's invocation of "operational needs" was pretextual, because IDOT began interviewing candidates for Plaintiff's old position at ETP the week after the transfer. (Id. ¶ 33.) Plaintiff further alleges that IDOT promoted Mark Jercha, a white male, in to Plaintiff's old position at ETP on May 28, 2010. (Id.)

Even though he has retained his Lead/Lead Worker title in his new position, Plaintiff views his transfer to the maintenance yard as a demotion. (Id. ¶ 34.) As Plaintiff puts it: "Rather than supervising nine lead workers and dozens of drivers who act as first responders to accidents and incidents on the state's highways, Plaintiff now supervises a [sic] 4 to 8 workers and one Lead Worker doing menial tasks such as picking up litter and cutting grass[.]" (Id.) The maintenance yard job also has substantially fewer opportunities for Plaintiff to work overtime, and as a result, Plaintiff states that he "has lost and continues to lose thousands of dollars each month in overtime wages." (Id. ¶ 35.) Furthermore, Plaintiff must now also commute over forty-five minutes to work, apparently in violation of Plaintiff's union contract. (Id. ¶ 34.)

Dissatisfied with his new job, Plaintiff has continued to inquire in to why he was transferred and has repeatedly asked to return to ETP from what had been billed to him as a "temporary" posting to the maintenance yard. (Id. ¶ 37.) Plaintiff contends that, in response to his insistent inquiries, IDOT "completely backtracked from the pretextual 'operational needs' explanation" for the transfer. (Id.) Instead, IDOT began claiming that the transfer had taken place because "a threat had been made on [Plaintiff's] life" on the social networking website Facebook. (Id.) Plaintiff also learned that IDOT had reported the threat to the Federal Bureau of Investigation ("FBI") as a "possible hate crime." (Id.) When Plaintiff spoke to the FBI investigator handling the case, as he had been instructed to do by IDOT personnel, Plaintiff learned that the alleged threat consisted of "a white subordinate ETP employee" posting something to the effect of "Let's get rid of Marvin Harrison." (Id. ¶ 38.) Nevertheless, Plaintiff says that the "FBI did not treat the threat as a real danger to Plaintiff's life and dismissed it altogether a week after Plaintiff was moved from ETP." (Id. ¶ 39.)

As he pressed to get his old job back during April and May of 2010, Plaintiff contends that IDOT representatives continued to offer varying explanations as to why he was transferred. Although IDOT's chief counsel apparently told Plaintiff in an email on May 20, 2010 that "we transferred you . . . for your safety due to threats on your life that are part of an FBI hate crimes investigation," other IDOT personnel told Plaintiff during a union grievance hearing that he had been transferred due to "operational needs." (Id. ¶ 40.) According to Plaintiff, these inconsistent explanations demonstrate that "IDOT removed Plaintiff from his Lead/Lead Worker position in response to race-based threats directed against him by one or more white subordinate employees." (Id. ¶ 41.) Furthermore, Plaintiff contends that "IDOT acquiesced to the demands of white subordinate employees for Plaintiff's removal." (Id.)

After filing a charge with the Equal Employment Opportunity Commission ("EEOC"), Plaintiff subsequently filed this lawsuit on July 27, 2010. Plaintiff's nine-count complaint alleges various Title VII, § 1981, § 1983, and state law claims. (Id. ¶¶ 43--90.) In lieu of answering the complaint, Defendants filed a motion to dismiss the complaint on several grounds. (Mot. & Mem.) Plaintiff responded to Defendants' motion to dismiss by agreeing to withdraw several of his claims. (Resp. at 7--9.) Specifically, Plaintiff agreed to withdraw Counts II, VII, VIII, and IX in their entirety. (Id. at 9.) Plaintiff has also agreed to withdraw his § 1981 claim against Defendant IDOT alleged in Count III, as well as his § 1981 and § 1983 claims against all Defendants in their official capacities. (Id.) We dismiss these claims accordingly.

Thus, what remains of Plaintiff's complaint is as follows: Count I alleging race discrimination in violation of Title VII against Defendant IDOT; Count III alleging retaliation in violation of Title VII against Defendant IDOT; Count IV alleging race discrimination in violation of § 1981 against the individual Defendants; Count V alleging retaliation in violation of § 1981 and Title VII against the individual Defendants; and Count VI ...


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