The opinion of the court was delivered by: Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Plaintiff Saul Diaz filed this lawsuit against his former employer, Elgin School District U-46, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., the Civil Rights Act of 1866, 42 U.S.C. § 1981, the Family and Medical Leave Act, 29 U.S.C. § 2061 et seq. (FMLA), and the Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq. (ADA). Diaz claims that he was disciplined and eventually terminated based on his natural origin, disability, and exercise of his FMLA rights. The School District has moved for summary judgment. R. 52.*fn1 For the reasons stated below, the motion is denied in part and granted in part.
Saul Diaz was hired by the School District in September 1998. R. 55 ¶ 9. During his employment, Diaz held the positions of relief custodian, head custodian, and "night lead." Id. ¶ 11. In 2001, Diaz's manager, Manuel Figueroa, was replaced by Cathy McNamara, who would become his new boss. Id. ¶¶ 10, 11, 14.
Throughout his employment, Diaz had work performance issues. At Diaz's first job (which was "relief custodian"), a number of managers, administrators, and co-workers complained about his work performance. Id. ¶ 12. For example, in March 2000, Figueroa (Diaz's then-manager) suspended Diaz without pay for five days based on several concerns, including "[d]efacing" various documents belonging to the head custodian and poor work performance. Id. ¶ 13; R. 56, Exh. 31.
At his second job, as head custodian at Sunnydale Elementary School, the principal complained to McNamara (his then-manager) about Diaz's performance. R. 55 ¶ 17. The following year, McNamara received another set of complaints from the next principal of the school. Id. ¶ 18. McNamara decided to move Diaz to Larkin High School, where he was placed as the "Night Lead" because this position required less personal interaction. Id. ¶ 20.
Yet the complaints still persisted. Bob Adamik, the head custodian at Larkin, complained that Diaz was not following instructions or completing assignments. Id. ¶ 27. On November 1, 2007, McNamara met with both Diaz and Adamik, and following the meeting, it was agreed that Diaz's cleaning duties would be reduced by half so that he could have more time to complete maintenance and other assignments. Id. According to Diaz, a "racist and discriminatory culture exposed itself" during this time.
R. 58 at 2. Diaz was referred to as "spic" and "wetback," and Adamik allegedly said that he loved firing Mexicans and that he would create a paper trail to get Diaz fired.
On November 28, 2007, Larkin High School Assistant Principal Lori Rollins sent an e-mail to McNamara regarding Diaz's repeated failure to respond to walkie-talkie calls and to the public address system. R. 55 ¶ 28. On that particular day, Rollins was unable to locate Diaz, and after she finally did, she had to remind him about responding to radio calls for assistance. Id. Diaz also failed to properly set up rooms for events, to carry his radio, and to answer calls. Id. ¶ 29.
Around a week later, on December 5, Diaz met with McNamara and union steward Mitch Cain to discuss these issues, and a month later, Diaz received a written warning. Id. ¶ 29. In January 2008, Diaz filed a discrimination charge with the EEOC based on this written warning. R.1, Exh. A at 2-3.
In February 2008, Rollins sent McNamara another e-mail, detailing additional concerns about Diaz's performance. R. 55 ¶ 31. On February 4, Diaz was late in addressing a problem relating to the fire alarm, causing the building to be without fire-alarm protection overnight. Id. ¶ 32. On February 25, various school employees reported that school doors had been left open overnight. Id. ¶ 33. On February 27, Diaz failed to complete a set-up in the cafeteria for an important recognition breakfast. Id.
¶ 34. Shortly afterwards, McNamara, Cain, and Rollins met with Diaz, and on March 31, Diaz was suspended without pay for five days. Id. ¶ 37. Diaz then filed a second EEOC charge, based on this suspension. R.1, Exh. A at 3-4.
On April 28, 2008, Diaz went on approved FMLA leave for complications due to his diabetes. R. 55 ¶ 41; R. 1 ¶¶ 32-34. He was scheduled to return from leave on May 22, 2008. Id. A week before he was scheduled to return, however, McNamara requested to meet with Diaz to address certain problems with his job performance. Id. ¶ 42. On May 22, the day he returned from leave, Diaz learned that he was being suspended without pay for ten days. Id. ¶ 44. Diaz complained to McNamara that "this is not fair . . . I've been harassed." R. 58, Exh. G1 at 77. According to Diaz, McNamara then said, "spic, nothing's going to happen after this." Id. Diaz contends that she then went on to say that "go[ing] to court" would not matter because the School District had "plenty of money" and "good attorneys." Id.
Diaz also had a run-in with Adamik, the school's head custodian. It occurred during the afternoon of June 17, 2008. R. 55 ¶ 47. As McNamara walked into the room, she witnessed Diaz standing over Adamik (who was sitting in a chair) while shouting at Adamik. Id. ¶ 48. Diaz's arm was behind him and McNamara thought Diaz was about to punch Adamik. Id. As soon as Diaz saw McNamara, he immediately left the scene. Id. Following the incident, McNamara told both Diaz and Adamik to give her statements describing what happened. Id. ¶ 49. Adamik wrote a report, saying that he believed Diaz was going to hit him. Id. ¶ 51. Joseph Ruiz, a witness to the incident, corroborated Adamik's account. Id. ¶ 52. Diaz, however, failed to submit a statement. Id. ¶ 53. Afterwards, McNamara, along with other administrators, recommended to the Board of Education that Diaz be fired. Id. ¶ 53.
On June 23, a termination hearing was held, and Diaz presented a statement describing his perspective on the altercation. Id. ¶ 54. McNamara was unmoved by his statement and continued to recommend termination. Id. A month later, after reviewing Diaz's entire file, the Board of Education approved Diaz's termination. Id. ¶ 57. Diaz filed an administrative grievance, which was reviewed by the Board of Education and denied. Id. ¶¶ 59-60.
On December 18, 2008, the EEOC issued Diaz two right-to-sue letters based on the charges he filed earlier that year. R.1, Exh. B. Three months later, Diaz filed a nine-count complaint alleging violations of Title VII, Section 1981, the Americans with Disabilities Act, and the Family Medical Leave Act. R.1. The School District moved for summary judgment, R.52, and the matter is now fully briefed before this court.
Summary judgment must be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining summary judgment motions, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007). The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, (1986). After "a properly ...