The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Reynold Benjamin, a former supervisor at the Illinois Department of Financial and Professional Regulation ("IDFPR"), filed an amended complaint against IDFPR and defendants Dean Martinez, John Harris*fn1 and Brent Adams in their official and individual capacities. Plaintiff, who is of Indian descent, alleges he was retaliated against because he engaged in protected activity, and discriminated against due to his race and national origin. Plaintiff brings claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII") for race and national origin discrimination and retaliation (Counts I and II, as to IDFPR), 42 U.S.C. § 1983 for violations of the Fourteenth Amendment's Equal Protection Clause (Count III, as to Martinez), and the Illinois State Officials and Employees Ethics Act ("Ethics Act")(Count IV, as to IDFPR, Martinez and Adams). Defendants do not move for summary judgment on the Title VII retaliatory termination claim in Count II. IDFPR's motion for partial summary judgment on Counts I and IV is granted in part and denied in part.*fn2 Martinez and Adams' motion for summary judgment on Counts III and IV is granted in part and denied in part.
I. Plaintiff is non-Hispanic and of Indian descent. He was hired on August 5, 2002 as the Supervisor of the Currency Exchange Section with the predecessor agency to IDFPR. On December 16, 2005, plaintiff was promoted to Assistant Director for the Bureau of Residential Finance in the Division of Banking, and reported directly to the Director of the Division, Jorge Solis, who is Hispanic. Defendant Martinez, who is Hispanic, is the former Secretary of IDFPR. John Harris, as then-Governor Blagojevich's Chief of Staff, had supervisory authority over Martinez. Defendant Adams was the IDFPR's Director of Policy and reported directly to Martinez. Adams currently serves as the Secretary of IDFPR.
Many of the underlying allegations of this case center on two of plaintiff's subordinates at IDFPR, Mario Pantoja and David Espinoza. Both men are Hispanic. Beginning in 2007, plaintiff complained to his supervisor that Pantoja and Espinoza were receiving preferential treatment because they were Hispanic. Specifically, plaintiff often questioned the whereabouts of these two men and believed that Martinez improperly allowed workplace infractions to go unaddressed because Pantoja and Espinoza were Hispanic. In addition, he believed that Pantoja and Espinoza were permitted to bypass the normal chain of command and received other kinds of favorable treatment that non-Hispanics did not receive. As explained more fully below, plaintiff argues that the removal of his temporary assignment pay ("TAP") and bilingual pay was both discriminatory and retaliatory, and directly attributable to the complaints he made regarding preferential treatment of Hispanics at IDFPR.
While I will address facts as necessary in my analysis, a brief overview is necessary. On April 16, 2008, plaintiff sent John Harris (who admitted receiving the memorandum but was unsure as to the date), then chief of staff to then-Governor Blagojevich, a memorandum detailing the discriminatory and retaliatory treatment he was allegedly receiving at IDFPR under Martinez. Specifically, plaintiff stated that Espinoza was "not qualified," was "never around" and had no knowledge of the mortgage industry. Pl. Ex. at 25. Plaintiff stated that Espinoza is protected by Martinez, is "never in the office" and is referred to as a "ghost payroller" by employees in other departments. Id. After receiving the memorandum, Harris met with Martinez concerning the memorandum. When Martinez indicated that he planned on terminating plaintiff, Harris told him he could not.
Plaintiff argues that, in addition to the removal of TAP, removal of bilingual pay and his eventual termination, Martinez targeted him in other ways. In the first quarter of 2008, Martinez told Solis that reliable sources informed Martinez that plaintiff had been out of the office performing other jobs or functions. Martinez gave Solis a calendar, and told him to ask plaintiff where he was on certain specific days at certain specific times. Martinez did not ask Solis to get this type of information from any other employees. In March 2008, Adams requested and received transponder records relating to plaintiff's entry and exit from IDFPR parking garages. Adams also requested timekeeping records for plaintiff from Human Resources, as well as I-Pass records for plaintiff. On or around March 2008, Adams' attendance investigation was folded into a broader investigation regarding plaintiff's work. Adams never found anything suggesting that plaintiff had secondary employment or had any days off which were unapproved.
Plaintiff points to other allegedly retaliatory (and/or discriminatory) actions taken by Martinez. In May 2008, Martinez wanted plaintiff to move to the Thompson Center to work on a project involving 500 backlogged real estate investigations; plaintiff would report directly to Martinez.*fn3 Solis testified that plaintiff believed Martinez was using the project as a way to get rid of plaintiff.
On May 10, 2008, plaintiff attempted to send another memo to Harris, in which he advocated to remain in his position as Assistant Director and stated that Martinez was attempting to move plaintiff in retaliation for incidents involving Espinoza and Pantoja. Harris testified that he was informed of the memo's existence, but not any of its contents. On June 6, 2008, Solis informed Harris that he wanted to keep plaintiff in his position as Assistant Director. Harris then informed Martinez that he was not to move plaintiff to the Thompson Center. Later that same day, Martinez called Solis, upset that Solis had gone over Martinez's head and talked to Harris without Martinez's knowledge. Solis testified that Martinez was upset that he had chosen plaintiff over "two Latinos, Mario Pantoja and David Espinoza." Martinez threatened that Martinez would now run the Division of Banking, instead of Solis. That evening, Martinez had Solis's BlackBerry turned off and, around that same time, Solis's state-provided vehicle was taken away from him. Despite this threat and these actions taken by Martinez, Solis was not terminated.
On June 23, 2008, Martinez emailed Jessica Nunes of Human Resources, telling her to remove the bilingual portion of plaintiff's pay. Solis was not consulted in the decision to remove plaintiff's bilingual pay. According to defendants, the bilingual pay was removed because plaintiff did not satisfy the requirements for it.
On June 30, 2008, plaintiff filed a complaint with the Office of the Executive Inspector General ("OEIG") against Martinez, alleging hiring improprieties, nepotism, racial discrimination, possible ghost payrolling, political pressure to help in campaigns for Hispanic candidates and promotions to friends and relatives due to political affiliation. On July 17, 2008, plaintiff filed an EEOC charge against Martinez, alleging race and national origin discrimination and retaliation.
Martinez testified that at some point after he was notified of plaintiff's charge, but before plaintiff was terminated on August 4, 2008, Martinez "removed himself from the process" concerning plaintiff's termination by abiding by whatever recommendation Adams made. Adams testified that he discussed a "course of action related to [plaintiff's] ongoing employment with the department" with Mireya Hurtado, deputy chief of staff in the Governor's office. On July 31, 2008, Adams emailed Hurtado, asking for authorization to terminate plaintiff, which Hurtado gave. On August 4, 2008 (effective August 5, 2008), plaintiff was terminated. The termination letter contains Martinez's signature and Martinez acknowledged that he was made aware of the letter at around the time it was issued to plaintiff. Plaintiff's termination letter did not articulate any reason for his termination. Solis, plaintiff's supervisor, testified that there was no work-related reason for plaintiff's termination. Defendants argue that plaintiff was fired for, among other things, perceived unavailability, missed meetings and poor performance. On August 5, 2008, plaintiff filed a second EEOC charge, alleging retaliation for his termination and a pattern of discriminatory and retaliatory conduct.
II. Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Once the moving party shows that there is no genuine issue of material fact, the burden of proof shifts to the nonmoving party to designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
A. Claim I: Title VII Race and National Origin Discrimination and ...