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Herbert Blackmon v. City of Chicago

July 20, 2011

HERBERT BLACKMON, PLAINTIFF,
v.
CITY OF CHICAGO,
DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Herbert Blackmon ("Blackmon"), an African-American male, alleges that Defendant City of Chicago ("the City") violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. ("Title VII"), and 42 U.S.C. § 1981 ("§ 1981"). A former probationary building inspector with the Department of Buildings ("DOB"), Blackmon alleges that his supervisors (1) discriminated against him because of his race and color by criticizing his performance, increasing his workload, denying him sufficient training, and eventually terminating his employment, and (2) retaliated against him after he complained about a co-worker's comments by transferring him to another division and later terminating his employment. The City has moved for summary judgment on all claims, arguing that Blackmon lacks evidence to prove his claims. For the following reasons, the motion is granted.

PROCEDURAL HISTORY

On October 27, 2008, Blackmon filed a charge with the Illinois Department of Human Rights ("IDHR") and alleged race discrimination and retaliation in violation of Title VII. (Pl.'s Am. Compl. ¶ 7.1(i); Charge of Discrimination, Attach. to Pl.'s Am. Compl.) After receiving a notice of his right to sue, on January 14, 2010, Blackmon filed a pro se complaint, alleging discrimination based on race and color, and retaliation under Title VII.*fn1 Blackmon's original lawsuit named, as Defendants, the City's Department of Buildings ("DOB"); Deputy Building Commissioner James Harney; Bill Bugajski, a DOB assistant director; Tom O'Donnell, a supervising building construction inspector; and Labor Relations Supervisor Scott Loeff. (Pl.'s Am. Compl. ¶ 14.) Claims against the individual Defendants were dismissed on motion, and the City now moves for summary judgment. (Def. City of Chicago's Mot. for Summ. J. (hereinafter "Def.'s Mot."), at 1.)

FACTUAL BACKGROUND

This Factual Background comes from Defendant's Local Rule 56.1(a) Statement of Undisputed Material Facts. Defendant complied with Local Rule 56.2 by providing notice to Plaintiff explaining FED. R. CIV. P. 56 and warning that a failure to respond properly could result in a judgment against him. N.D. ILL. LOCAL RULE 56.2. Plaintiff responded by filing a response memo, a 56.1(a) statement, and a response to Defendant's 56.1(a) statement.

Blackmon became a probationary building construction inspector with the DOB on March 17, 2008. (Def.'s Local Rule 56.1(a) Statement of Undisputed Material Facts (hereinafter "Def.'s 56.1(a)") ¶ 3.) During his six-month probationary period, Blackmon was employed at will and was subject to discharge as exclusively determined by the City. (Id. at ¶¶ 3, 13; City of Chicago Personnel Rule IX, Ex. 11 to Def.'s 56.1(a).) He received general orientation at the DOB for approximately two weeks before he was assigned to the demolition division. (Def.'s 56.1(a) ¶¶ 14-15.) Blackmon had worked as an inspector before, but he was not employed when he applied for this job. (Blackmon Dep., Ex. 3 to Def.'s 56.1(a), at 17.)

The parties have not described the work of the demolition division in great detail, but the court understands that the division responds to complaints from the public regarding vacant and open buildings. Information on Demolition Process, City of Chicago, http://www.cityofchicago.org /city/en/depts/bldgs/supp_info/information_on_thedemolitionprocess.html (last visited July 6, 2011). If a building is abandoned or criminal activity is occurring there, it is referred to the circuit court system. Id. The court may order the building to be properly secured or ultimately demolished. Id.

In the demolition division, Blackmon was responsible for inspecting properties to assess their condition, recording whether the properties were vacant and open or secured, and recording any building code violations. (Def.'s 56.1(a) ¶ 17.) Blackmon received on-the-job training, which involved shadowing other building inspectors in the field for two to three weeks. (Id.) Following his training, Blackmon's daily routine at work involved completing paperwork at DOB headquarters in the morning and conducting inspections in the afternoon. (Id. at ¶ 18.)

Blackmon and his co-workers in the demolition division shared a communal workspace and computer terminals where they completed their paperwork in the morning. (Id. at ¶ 19.) Although the inspectors were not assigned to specific work stations, some of those inspectors who had worked there for a long time would sit at the same work station every day and often displayed personal items in their stations. (Id.) According to Blackmon, there were approximately 14 inspectors, but only 10 computer terminals, which meant that sometimes inspectors had to wait to use a computer. (Id.) Blackmon testified that white and African-American inspectors sat on one side of the workspace, which was divided by a partition, and white and Hispanic inspectors sat on the other side of the workspace. (Id. at ¶ 20; Blackmon Dep. at 112.) The City does not dispute or explain this de facto segregated seating arrangement, other than to note it was Blackmon's "opinion" that the communal workspace was racially divided. (Def.'s 56.1(a) ¶ 20.)

In May 2008, Blackmon was looking for a computer terminal and saw an open seat beside Nick Covello (who is white), a seat ordinarily occupied by Rich Nowak.*fn2 (Id. at ¶ 22.) Blackmon asked Covello whether anyone was sitting in the open seat, and Covello replied, "It's all yours." (Id.) After Blackmon sat down to do his work, Tony Burmistrz (who is white) said, "Herb, if I was you, I would move back over to the other side." (Id. at ¶ 24.) Blackmon replied, "Why don't you move over there to the other side." (Id.) Burmistrz replied, "They don't like me over there." (Id.)

Although Burmistrz did not mention race during this exchange, Blackmon testified he believed Burmistrz's comments were motivated by race because: (1) Burmistrz is white and Blackmon is African-American, (2) Blackmon had sat down on the side of the partition primarily used by white and Hispanic inspectors, and (3) there was no reason for Burmistrz to suggest Blackmon move. (Id. at ¶ 25; Blackmon Dep. at 94, 110.)

Burmistrz's comments upset Blackmon, and he left to report what had happened to Shirley Seymore, an employee in the DOB's personnel division. (Id. at ¶¶ 26-27.) According to Blackmon, after he described the incident to Seymore, Seymore brought Marlene Hopkins, the Managing Deputy Commissioner, to speak with Blackmon in a hallway near Seymore's office. (Id. at ¶¶ 28, 29.) Blackmon told Hopkins: "I'm tired of this racial crap, I'm getting too old for this." (Id. ¶ 29, Blackmon Dep. at 104.) Hopkins told Blackmon that she could either talk to Burmistrz or transfer Blackmon to another division, and Blackmon chose the latter option. (Def.'s 56.1(a) ¶ 30.) Hopkins informed Deputy Building Commissioner Harney about Blackmon's complaint, and Harney decided to re-assign an employee from the Strategic Task Force ("STF") division to the demolition division and re-assign Blackmon from demolition to STF. (Harney Aff. ¶¶ 4, 7.)

A few days later, Blackmon met with Tom O'Donnell, supervising building construction inspector; Bill Bugajski, assistant director; and Don Mitchell, demolition supervisor, to discuss Blackmon's transfer to the STF division. (Def.'s 56.1(a) ¶ 34.) They offered Blackmon the position, and he accepted. (Id.) Blackmon's job title, salary, and benefits did not change after his transfer. (Id. at ¶ 35.)

STF works closely with the Department of Law and the Chicago Police Department, which refers troubled buildings and properties where criminal activity is occurring to the DOB for prosecution of City building code violations. (O'Donnell Aff. ¶ 2.) Within this division, the STF court team, which consists of three inspectors, is responsible for inspecting properties that are the subject of circuit court cases and testifying at a twice-weekly court call. (Id.)

Blackmon began his work as a probationary building inspector on the STF court team in May 2008. (Def.'s 56.1(a) ¶¶ 35, 39.) His job duties including inspecting properties, recording building code violations, and providing testimony in court cases brought by the City regarding building code violations where criminal activity was taking place. (Id. at ¶ 36.) After his transfer, Blackmon received training in the field from O'Donnell for approximately two to three weeks and went to court with O'Donnell to observe courtroom testimony for approximately two weeks. (Id. at ¶ 37; O'Donnell Aff. ¶ 7.) Although he acknowledges receiving this training, Blackmon nevertheless contends he was denied assistance and sufficient training. (Pl.'s Am. Compl. ¶¶ 31, 33-34; Blackmon Dep. at 153, 154.) Blackmon testified that he later asked for O'Donnell's help with an assignment and O'Donnell did not respond.*fn3 (Blackmon Dep. at 213.)

After Blackmon's training period ended in June 2008, O'Donnell began observing that Blackmon had performance problems, including: (1) substandard courtroom testimony, (2) difficulty identifying porch and building violations, (3) difficulty preparing violation notices, (4) failure to prepare amendments when additional violations were observed, (5) demonstrating a timid street presence, and (6) failing to use his time wisely. (Def.'s 56.1(a) ¶ 40.) Blackmon denies these observations and asserts that Bugajski excessively scrutinized his work performance. (Pl.'s Resp. to Def.'s Local Rule 56.1(a) Statement of Undisputed Material Facts (hereinafter "Pl.'s Resp.") ¶ 40.)

Also in June 2008, Assistant Director Bugajski received complaints from Judith Dever, senior corporation counsel at the City's Department of Law, regarding Blackmon's courtroom testimony. (Def.'s 56.1(a) ¶ 41.) Specifically, Dever reported that City prosecutors were dissatisfied with Blackmon's courtroom testimony because he could not remember details of inspections he had completed. (Id.) Bugajski also received similar complaints from Stephen McKenzie, senior counselwith the City's Department of Law. (Id.) Blackmon testified that one time Dever asked him "in passing," about a specific property, which he had inspected a few days before, but Blackmon could not recall details concerning the property at that time.*fn4 (Id. at ΒΆ 42; Blackmon Dep. at 156, 157.) Blackmon also received an e-mail message on August 27, 2008, from McKenzie (copies of which were directed to O'Donnell and Bugajski), stating ...


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