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Edgar Tate v. Jo Gulley Ancell

September 1, 2011

EDGAR TATE, PLAINTIFF,
v.
JO GULLEY ANCELL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge:

MEMORANDUM and ORDER

I. Introduction and Background

Now before the Court are defendants' motions for summary judgment (Docs. 86, 87 & 90). Tate opposes the motions (Doc. 103). Based on the following, the Court grants the motions for summary judgment.

Originally, Edgar Tate filed a seven-count complaint against defendants Jo Gulley Ancell, Jeff Standerfer, Al Farmer, Eugene Davis, Lorie Humphrey, Kim Evans, Addus Home Health Care, and the Department of Human Services ("DHS"), Division of Rehabilitation Services ("DRS") (Doc. 2). The complaint contained claims for violations of the Americans with Disability Act ("ADA") 42 U.S.C. § 12101, et seq.; national origin discrimination based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the Equal Protection Clause of the Fourteenth Amendment made actionable through 42 U.S.C. § 1983; hostile work environment based upon national origin in violation of Title VII, 42 U.S.C. § 1981, and the Equal Protection Clause of the Fourteenth Amendment made actionable through 42 U.S.C. § 1983; retaliation for opposing sex discrimination in violation of Title VII, 42 U.S.C. § 1981, and the Equal Protection Clause of the Fourteenth Amendment made actionable through 42 U.S.C. § 1983; retaliation for opposing unlawful acts of nepotism; First Amendment retaliation for opposing sexual harassment and nepotism and loss of consortium.

On March 9, 2009, the Court entered an Order granting in part and denying in part two motions to dismiss filed by the parties (Doc. 34). Specifically, the Court dismissed with prejudice the ADA claim in Count I against the Addus Group defendants; the Title VII claim for discrete discrimination in Count II against the Addus Group defendants; the Title VII claim for hostile work environment in Count III against the Addus Group defendants; and the Title VII retaliation claim in Count IV against the Addus Group defendants. The Court also allowed Tate to withdraw Count V -- the Illinois state common law claim for retaliation. Further, the Court dismissed with prejudice Tate's § § 1981 and 1983 against DRS in Counts II, III, IV and V and dismissed with prejudice Tate's § 1981 and 1983 claims against Ancell, Standerfer and Davis in their official capacities. In addition, the Court dismissed with prejudice Tate's loss of consortium claim - Count VII. Lastly, the Court allowed Tate leave to file an amended complaint.

Thereafter, on December 30, 2009, Tate filed his Second Amended Complaint (Doc. 63).*fn1 This complaint contains ten counts against defendants: Count I - an ADA claim against DRS; Count II - a national origin and retaliation claim for opposing sexual harassment against DRS in violation of Title VII; Count III - a claim for hostile work environment based on national origin and retaliation for opposing sexual harassment against DRS in violation of Title VII; Count IV - a claim for discrete discrimination and hostile work environment discrimination in violation of § 1981 and the Equal Protection Clause of the Fourteenth Amendment (made actionable through 42 U.S.C. § 1983) against Ancell; Count V - a claim for discrete discrimination and hostile work environment discrimination in violation of § 1981 and the Equal Protection Clause of the Fourteenth Amendment (made actionable through 42 U.S.C. § 1983) against Standerfer; Count VI - a claim for discrete discrimination and hostile work environment discrimination in violation of § 1981 and the Equal Protection Clause of the Fourteenth Amendment (made actionable through 42 U.S.C. § 1983) against Davis; Count VII - a claim for discrete discrimination and hostile work environment discrimination in violation of § 1981 and the Equal Protection Clause of the Fourteenth Amendment (made actionable through 42 U.S.C. § 1983) against Farmer; Count VIII - a claim for discrete discrimination and hostile work environment discrimination in violation of § 1981 and the Equal Protection Clause of the Fourteenth Amendment (made actionable through 42 U.S.C. § 1983) against Addus; Count IX - a claim for discrete discrimination and hostile work environment discrimination in violation of § 1981 and the Equal Protection Clause of the Fourteenth Amendment (made actionable through 42 U.S.C. § 1983) against Evans; and Count X - a claim for discrete discrimination and hostile work environment discrimination in violation of § 1981 and the Equal Protection Clause of the Fourteenth Amendment (made actionable through 42 U.S.C. § 1983) against Humphrey.

II. Facts*fn2

The Department of Human Services ("DHS"), Division of Rehabilitative Services ("DRS") is a public agency run by the state of Illinois. DRS provides both vocational rehabilitation services and home services to eligible persons with disabilities. Edgar Tate is a Cuban born Hispanic male and has sleep apnea. He has been a rehabilitation counselor for DRS, in the Anna office, since February 1, 1993. In 1998, he was promoted to rehabilitation counselor- senior. From January 2003 to December 2004, Al Farmer was Tate's immediate supervisor. Farmer retired in December 2004. From January 2005 to the present, Jo Gulley Ancell has been Tate's immediate supervisor. Jeff Standerfer is the Assistant Bureau Chief ("ABC") for DRS. He was Farmer and Ancell's immediate supervisor. Eugene Davis was the personal assistant to Carole Adams, who was the head of DHS.

Addus is a provider of high-quality health services and supplemental health care staffing and provides comprehensive health care services including skilled nursing, personal care aides, rehabilitation and in-home support services to over 40,000 individuals annually. Addus provided support staff and Licensed Practical Nurses, by contract, for the DRS's offices in Carbondale and Anna, Illinois. Addus has an office located in Marion, Illinois, which is managed by Agency Director Evans. Pursuant to Addus's contract with DRS, Evans hired Humphrey as a Licensed Practical Nurse ("LPN") to fill an opening at DRS's Carbondale, Illinois office. Humphrey learned about the opening at DRS's Carbondale office from Tate and submitted an application for employment at his urging. Ancell made the decision to have Addus hire Humphrey for the LPN position. For a period of time in or about November 2005, Ancell assigned Humphrey to work at DRS's Anna office so that she could assist with the mandatory client reassessments as a part of a state-wide re-determination initiative.

Veronica Green (now Veronica Bowden) was Tate's rehabilitation case coordinator in December 2003.

In November or December 2003, Green complained that Farmer had sexually harassed her. Tate claims that he supported and encouraged her to file an EEOC complaint against Farmer. In December 2003, Vicky Tuttle, another employee, filed an EEOC charge alleging that Farmer sexually harassed Green. Tate never told Farmer that he assisted Green in filing her sexual harassment complaint with the EEOC. Tate never spoke with Farmer about Green's EEOC complaint. Tate never spoke with Farmer about his support for Green's EEOC complaint or her sexual harassment allegations.

On or about March 8, 2006, Tate called a client by telephone to discuss an issue rather than contacting the client in writing as he had been directed by Ancell. Thereafter, Tate received an oral reprimand for failure to follow supervisory instruction. Prior to that incident, Tate received counseling for failure to follow supervisory instruction and on November 5, 2005, he received counseling for failure to follow supervisory instruction.

In September 2006, Tate failed to provide a required Summary of Evidence to a hearing officer three working days in advance of a scheduled appeal hearing as required by administrative code section 510.105(d) and as directed by Ancell. Tate also failed to represent DRS at that hearing and this failure to appear resulted in a ruling by default and, thus, thousands of agency dollars were paid to a client who previously had been determined ineligible for services. On November 15, 2006, while DRS's disciplinary decision related to the September 2006 incident was still pending, Tate failed to submit another Summary of Evidence for another appeal hearing. This hearing was postponed by the client. On November 13, 2006, Ancell emailed Tate and instructed him to work with Humphrey on the Summary of Evidence for a November 30, 2006 hearing. Ancell also instructed Tate to provide a draft of the Summary of Evidence to her by November 20, 2006. Humphrey notified Tate that she would be in the Anna office all day on November 16, 2006 to meet with him and to prepare the Summary of Evidence. The meeting between Tate and Humphrey did not take place. Humphrey faxed Tate a 9-page Summary of Evidence on November 17, 2006. Tate submitted only a 1-page Summary of Evidence to Ancell and he did not include the information that Humphrey provided him.

Shortly thereafter, Ancell charged Tate with failing to follow supervisory instructions and negligence in performing his job duties. After the disciplinary hearing on these incidents, Ancell, after consulting with the her supervisor and members of the Bureau of Labor Relations, recommended that Tate be suspended for 5 days for failing to follow supervisory instructions and negligence in the performance of his duties in violation of the DHS Employee Handbook, Section V, Employee Personal Conduct. After reviewing the facts and the documents related to the September and November Summary of Evidence incidents, Laurie Tappenbeck of the Bureau of Labor Relations approved the 5-day suspension for Tate. Following a grievance by the union, Tate's suspension was reduced to two days.

In February 2007, Tate fell asleep during a training seminar. Tate was snoring and had to be nudge to be awakened. Based on this, Tate was charged with sleeping on duty in violation of the DHS Employee Handbook, Section V, Employee Personal Conduct, Sleeping on Duty. Tate admitted to sleeping during the February 8, 2007 training seminar and numerous witnesses provided written statements confirming that Tate was sleeping during the training seminars. Based on Tate's admission, the witnesses statements, and discussions with Labor Relations and DRS management, Ancell recommended that Tate be suspended for 15 days for sleeping on the job. After reviewing the incidents, Tappenbeck approved the 15-day suspension for sleeping on duty.

On May 17, 2007, Tate failed to submit another Summary of Evidence to the hearing officer three working days prior to the hearing as instructed by Ancell and as required by the administrative code section 510.105(d). Witnesses statements were provided by LPN Sandy Kohler and Rehabilitation Case Coordinator Patricia McIntosh. Based on these statements, Ancell recommended that Tate receive a five-day ...


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