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Robert Gaytan v. City of Chicago

July 5, 2012

ROBERT GAYTAN, PLAINTIFF,
v.
CITY OF CHICAGO, DEFENDANT.



The opinion of the court was delivered by: Judge Joan H. Lefkow

OPINION AND ORDER

Robert Gaytan filed a pro se complaint against the City of Chicago, alleging race and religious discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq. Before the court is the City's motion to dismiss Gaytan's complaint pursuant to the Federal Rule of Civil Procedure 12(b)(6).*fn1 For the reasons set forth below, the motion [#14] will be granted in part and denied in part.

FACTS*fn2

I. Gaytan's Employment with the City of Chicago

Robert Gaytan was hired by the City of Chicago's Department of Water Management ("DWM") in March 1994. As of 2010, he was employed as a bricklayer. (Compl. ¶¶ 1, 3.)

During his tenure at the DWM, Gaytan was discriminated against on the basis of his race by Bill Wilson, John Stroden, and Billy O'Conner. (Id. ¶ 4.) Gaytan was also subjected to a hostile work environment on the basis of his race and religion. (Id. ¶ 5.)

On March 17, 2010, Gaytan was disciplined, allegedly for having fallen asleep in his car after his shift had ended. (Id. ¶ 7.) On March 24, 2010, Stroden "harassed" and "insulted" Gaytan. (Id. ¶ 8.) Finally, on August 1, 2011, Gaytan was suspended for ten days, allegedly for performing substandard work. (Id. ¶ 6.) As a result of these unlawful suspensions, Gaytan lost time at work.

II. Employment Discrimination Charges Filed with the EEOC

A. Charge Attached to the Complaint

On April 26, 2010, Gaytan filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination based on his Christian religion and "Mexican ancestry." (Compl. Ex. 2.) The charge asserts that on April 20, 2010, Wilson, another brick layer, called Gaytan a "jack-off" and said that he did not want to work with Gaytan. Wilson also refused to communicate with Gaytan, was verbally abusive, and displayed hatred for Mexicans and Christians. Gaytan complained about Wilson to Barrett Murphy, an assistant deputy commissioner, and Murphy told Gaytan to resign. The EEOC charge alleges that Wilson's harassment created a hostile work environment that interfered with Gaytan's ability to perform his job duties. Finally, the charge asserts that Gaytan was improperly suspended on April 21, 2010 because he allegedly threw coffee at O'Conner.*fn3 The EEOC issued a notice of right to sue on September 9, 2011. (Compl. Ex. 1.)

B. Additional Charges

Between April 15, 2010 and August 10, 2011, Gaytan filed at least three additional charges of discrimination that are not attached to his complaint. The City has included the three additional charges as exhibits to its motion to dismiss.

The first charge, dated April 15, 2010, alleges discrimination on the basis of "Mexican ancestry." (Def.'s Mot. to Dismiss Ex. A.) The charge asserts that Gaytan was suspended for one week on March 5, 2010, by Paul Hansen, the DWM's north district superintendent, because he allegedly falsified documents and performed poorly at work. In addition, the charge asserts that Gaytan was harassed on the basis of his Mexican ancestry by O'Conner*fn4 between March 17, 2010 and April 1, 2010. The charge asserts that O'Conner harassed Gaytan by verbally attacking him in front of other employees, threatening discipline for poor performance, requiring him to perform tasks outside the scope of his assigned duties, and making frequent calls to Gaytan's cell phone throughout the day. The EEOC issued a right to sue letter on September 6, 2011. (See Def.'s Mot. to Dismiss Ex. D.)

The second charge, dated August 27, 2010,*fn5 alleges retaliation and discrimination on the basis of religion and "Hispanic ancestry." (Def.'s Mot. to Dismiss Ex. B.) The charge asserts that Gaytan was harassed by Stroden*fn6 on March 24, 2010 and that Stroden told him that he was "going to fucking fire me and write my ass up as many times as he can to get me fired." (Id.) The charge asserts that Stroden's conduct constituted discrimination on the basis of Gaytan's religion and ancestry as well as retaliation for Gaytan's April 15, 2010 and April 26, 2010 EEOC charges. The charge further asserts that Stroden suspended Gaytan on August 22, 2010, allegedly for conduct unbecoming of a city employee, ...


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