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Mark S. Hernandez v. William Rainey Harper College

October 27, 2011


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:


Mark Hernandez has sued his former employer, William Rainey Harper College ("Harper"), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1). Hernandez claims that Harper discriminated against him because of his Mexican national origin (Count 1) and retaliated against him after he complained about this alleged discrimination (Count 2).*fn1 Harper has moved for summary judgment. For the reasons stated below, the Court grants the motion.


On a motion for summary judgment, the Court views the facts in the light most favorable to the non-moving party and draws reasonable inferences in that party's favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011). The following facts are taken from the parties' memoranda of law and statements of uncontested facts.

Harper is a community college located in Palatine, Illinois. Hernandez worked at Harper as an adjunct faculty member and head baseball coach during the 2007-08 school year. Douglas Spiwak, Harper's Director of Athletics and Fitness, interviewed Hernandez and recommended him for hire in May 2007. Hernandez began scouting and recruiting players during the summer of 2007, but he was not working under an employment contract at that point.

A. Background check

Harper policy requires new hirees to submit to a criminal background check. The first phase of this check involves a "Waiver for Non-Fingerprint Conviction Information Records Check" form, which asks new hirees for their full name, date of birth, sex, social security number, and driver's license number. Harper's police department then submits the information to the Illinois State Police office, which generates a "Statewide Records Search document." Harper policy dictates that if the records search returns a "conviction hit," the new hiree must submit fingerprints for a further background check.

Hernandez completed the non-fingerprint form in September 2007. The ensuing records search returned a result indicating one or more conviction hits. Spiwak then informed Hernandez that he needed to undergo a fingerprint check. Hernandez agreed and went to the campus police office on October 2, 2007. Hernandez testified that when he did so, he asked an officer why he needed to be fingerprinted. The officer responded that Hernandez's "name had triggered markers within their system." Hernandez Dep. 91:20-21. Hernandez then submitted his fingerprints.

On April 7, 2008, a member of Harper's human resources staff sent the following e-mail to Hernandez:

After much communication with Harper police, it has come to my attention that the results of the background check for Mark Hernandez were never received. Unfortunately, the person to normally handle background checks for HPD has been out of the office on and off for awhile. I spoke today with Nan who has tried to retrieve the results from the original finger printing. The results are only kept by the state for 30 days and we are long past that time frame. At this point, we have been asked to submit a new set of finger prints. This will require Mr. Hernandez to return to HPD for new prints to be taken.

I apologize for the inconvenience to Mark. This is a requirement of employment however, so we must redo the background check.

Def. Ex. 23.*fn2 Hernandez replied on April 9, 2008, copying Spiwak:

I have addressed this disturbing issue regarding a demand for finger prints with my Physical Education Department Co-chair Sue Overland. I am disheartened to learn that my initial set of fingerprints was mishandled by the Harper Police Department. In my discussion with Sue Overland, I was made aware of the fact that in the Harper College Instructional/Teaching Adjunct Faculty Handbook that an Adjunct Instructor is not required to be fingerprinted.

I was taken aback, appalled, and sickened when initially ordered to be finger printed as a requirement for employment during the Fall 2007 semester. While addressing the initial finger print demand at the Harper police department, I was not satisfied with the racialist justification of having a "common name" that triggered markers as a reason too violate my confidence, drive, and morale. As a successful minority Adjunct Instructor, I discussed with Sue Overland my resentment of the intimidating implication, narrow-mindedness, and discrimination for the initial and current claim, requirement, and demand for fingerprints.

I have been in an athletic leadership role as a Head Baseball Coach, as well as, an Adjunct Instructor capacity at Harper College since the Fall 2007 semester. I have previously worked in college environments and have never been asked to be finger printed because of my name. I was and remain deeply offended, embarrassed, and humiliated by the demand of taking fingerprints. I am now feeling intimidated again because of another demand for a second set of finger prints due to internal incompetence. I do not accommodate ineptitude and decline taking a second demand of finger prints until seeking legal consultation. Def. Ex. 24.

On May 21, 2008, Hernandez returned to the college police department for a second fingerprinting and a meeting with Harper's chief of police. Before or during this meeting, however, the chief accessed a separate background-data system and determined that the conviction hits from the non-fingerprint background check were for someone other than Hernandez. The meeting therefore cleared Hernandez for continued employment. He was not required to submit a second set of fingerprints and did not do so.

B. Hernandez's employment at Harper College

Hernandez's responsibilities as head baseball coach included "scheduling games, recruiting in-district athletes, supervising all baseball practices and games, submitting statistics, and coordinating all aspects of the baseball program with the Athletic Director." Def.'s L.R. 56.1 Stmt. ¶ 51. He was also required to abide by the National Junior College Athletic Association ("NJCAA") Rules and Regulations and Code of Conduct.

In April 2008, before a home baseball game, Hernandez allowed one of his players to drive an SUV onto the baseball field dragging a device that was intended to prepare the field for play. Hernandez was not told before this that he could take such an action or that he was specifically forbidden from doing so. Hernandez claims that Richard Geary, the Harper buildings and grounds employee who was responsible for field maintenance, had failed to prepare the field properly and that Hernandez had to "groom" the field to render it safe for play. The game started late because of the time taken up by field preparation, and officials eventually halted it due to darkness. Hernandez's action upset Geary. Spiwak later informed Hernandez of this and asked Hernandez not to have any further contact with Geary.

At a baseball game on April 14, 2008, Hernandez had a series of disagreements with the umpire. Hernandez entered the field during the game and asked the umpire, "What the fuck are you doing?", told the umpire that something was "fucking awful" and that the umpire did not "know what the fuck my pitcher is thinking," and asked, "How the fuck can you give a warning for that?" Hernandez Dep. 188:2-189:6. Hernandez refused to comply with the umpire's request that he return to his dugout. The umpire then ejected Hernandez from the game, and the NJCAA issued an automatic one-game suspension pursuant to its rules. Spiwak thereafter warned Hernandez that he would not tolerate such conduct. No other Harper coaches were ejected from a game or suspended during the 2007-08 school year. However, Harper's current baseball coach was ejected and received a one-game suspension after arguing a call with the umpire in April 2011.

Spiwak says that he received "informal complaints from Athletic Department staff, including [his] assistant Cheryl LaRocca, that Hernandez was arrogant and rude when discussing business matters with them." Def. Ex. 16 ¶ 13. Spiwak also says that he received "informal complaints . . . from several baseball players that Hernandez was preferential to his recruits and did not provide a balanced learning experience for returning players." Id. ¶ 19. Spiwak informed Hernandez that he had received complaints. Hernandez does not expressly deny these allegations, but he claims that he was not told of any problems until after he sent the April 9 e-mail objecting to a second fingerprinting and that Spiwak has not identified any complainants or stated specifically what they said.

In an April 15, 2008 e-mail conversation on which Spiwak was copied, a Harper athletics employee responsible for the website asked Hernandez for recaps of the baseball games his team had played. Hernandez's response stated in part,

I am going to pass on the game recaps. Too many requests for additional peripheral things that will not benefit our student-athletes, other than my communication to four year programs. . . . Not enough time in the day and if a game recap is not completed correctly to my standards, I do not want it done at all.

Def. Ex. 36. In response to the employee's suggestion that the players "like some recognition," Hernandez wrote, in part,

My experience with the website is that it has attracted the wrong type of student-athlete . . . . I do not have one player in my program from the effort of the website and work too hard to invest additional time. I do not want or need ...

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