The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
Thursday, 27 September, 2012 03:37:13 PM Clerk, U.S. District Court, ILCD
The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 USC. § 636(c), and the District Judge has referred the case to me. Now before the Court is the Defendant's motion for summary judgment (#31). The motion is fully briefed, and I have carefully considered the arguments and evidences submitted. As stated herein, the motion is GRANTED.
I. JURISDICTION AND VENUE
In his complaint, Plaintiff asserted claims under the Civil Rights Act, 42 USC § 1981 as amended by the Civil Rights Act of 1991; the Civil Rights Act of 1964, 42 USC § 2000e-1 et seq,; and the Americans with Disabilities Act, 42 USC. §12101 et seq. Jurisdiction over those claims is found under 42 USC §1331 and 1343. The complaint also included claims arising under Illinois Human Rights Act. Supplemental jurisdiction over those claims is found under 42 USC § 1367.
The events underlying this case occurred in Peoria County, Illinois, which is within the Central District of Illinois. Venue is therefore proper in this Court pursuant to 28 USC §1391. Cases arising in Peoria County are assigned to the Peoria Division. CDIL-LR 40.1.
II. SUMMARY JUDGMENT GENERALLY
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 US 574, 587 (1986). Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment should be entered if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Jay v. Intermet Wagner Inc., 233 F3d 1014, 1016 (7th Cir 2000); Cox v. Acme Health Serv., 55 F3d 1304, 1308 (7th Cir 1995).
In ruling on a summary judgment motion, the court may not weigh the evidence or resolve issues of fact; disputed facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 US 242 (1986). The court's role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. Waldridge v. American Hoechst Corp., 24 F3d 918, 922 (7th Cir 1994). The court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.
The court is to examine all admissible facts, viewing the entirety of the record and accepting all facts and drawing all reasonable inferences in favor of the non-movant, Erdman v. City of Ft. Atkinson, 84 F3d 960, 961 (7th Cir 1996); Vukadinovich v. Bd. of Sch. Trustees, 978 F2d 403, 408 (7th Cir 1992), cert. denied, 510 US 844 (1993); Lohorn v. Michal, 913 F2d 327, 331 (7th Cir 1990); DeValk Lincoln-Mercury, Inc. V. Ford Motor Co., 811 F2d 326, 329 (7th Cir 1987); Bartman v. Allis Chalmers Corp., 799 F2d 311, 312 (7th Cir 1986), cert. denied, 479 US 1092 (1987), and construing any doubts against the moving party. Adickes v. S.H. Kress & Co., 398 US 144 (1970); Trotter v. Anderson, 417 F2d 1191 (7th Cir 1969); Haefling v. United Parcel Serv., Inc., 169 F3d 494, 497 (7th Cir 1999).
The existence of "some alleged factual dispute between the parties," or "some metaphysical doubt," however, does not create a genuine issue of fact. Piscione v. Ernst & Young, L.L.P., 171 F3d 527, 532 (7th Cir 1999). "Inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion." McDonald v. Village of Winnetka, 371 F3d 992, 1001 (7th Cir
2004). The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, for example, Jordan v. Summers, 205 F3d 337, 342 (7th Cir 2000). A scintilla of evidence in support of the non-moving party's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 US at 250.
Admissibility is the threshold question, because a court may consider only admissible evidence in assessing a motion for summary judgment. Gunville v. Walker, 583 F3d 979, 985 (7th Cir2009); Haywood v. Lucent Technologies, Inc., 323 F3d 524, 533 (7th Cir2003) (inadmissible evidence will not overcome a motion for summary judgment). See also Bombard v. Fort Wayne Newspapers, Inc., 92 F3d 560, 562 (7th Cir1996) (evidence relied upon at the summary judgment stage must be competent evidence of a type otherwise admissible at trial). A party may not rely upon inadmissible hearsay to oppose a motion for summary judgment. MMG Fin. Corp. v. Midwest Amusements Park, LLC, 630 F3d 651, 656 (7th Cir 2011); Logan v. Caterpillar, Inc., 246 F3d 912, 925 (7th Cir2001) (inadmissible hearsay is not enough to preclude summary judgment); Eisenstadt v. Centel Corp., 113 F3d 738, 742 (7th Cir1997) (hearsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial); Bombard, 92 F3d at 562 (inadmissible hearsay from an affidavit or deposition will not suffice to overcome a motion for summary judgment).
If the undisputed facts indicate that no reasonable jury could find for the party opposing the motion, then summary judgment must be granted. Hedberg v. Indiana Bell Tel. Co., 47 F3d 928, 931 (7th Cir 1995), citing Anderson, 477 US at 248. If the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party and on which that party will bear the burden of proof at trial, then summary judgment is proper. Celotex, 477 US at 322; Waldridge, 24 F3d at 920.
III. STATEMENT OF UNDISPUTED MATERIAL FACTS
Plaintiff Peterjohn Hoffman was employed by Defendant Bradley University as a police officer from May 10, 2007 until his employment was terminated on November 17, 2009. He is Korean-born, adopted by American parents at the age of 3 months, and he has resided in the United States since his adoption. He became a naturalized citizen at the age of 7.
After he was hired by Bradley, he completed training at the Police Training Academy in Champaign, Illinois, and then, on August 2, 2007, he began participation in the Field Training Officer Program ("FTO") of the Bradley University Police Department. On December 9, 2007, while still in the FTO, Hoffman sustained a work-related injury when he slipped on ice while on duty, tearing his rotator cuff. He had surgery on his shoulder in March of 2008. He continued to have complaints of pain after surgery, and was treated for that pain until June of 2009. He was off work completely until April 28, 2008, when he returned to work with a light-duty restriction. He remained on light duty until he was cleared on June 8, 2009 to resume unrestricted duties as a police officer. He then resumed the FTO program which he completed on November 8, 2009.
While Hoffman was on light duty, he was assigned office work, which included filing papers, filling out arrest cards, cleaning, and other clerical tasks. They were tasks that ordinarily the office manager, Jocelyn Watkins, would have done. For one month, he also worked some of his hours in the University's Human Resources Department, filing and preparing paperwork for new hires. During that one month period, there was occasional confusion about where Hoffman was.
During this time, Dave Baer, the Chief of Police, asked Hoffman to organize several bookcases of trade magazines. The magazines were related to police work, and according to Watkins, the Chief used them in his role as Chief. There were hundreds of magazines, and the Chief asked Hoffman to stack them into categories and then box them for storage.
Hoffman viewed this task as demeaning and believed that the Chief had assigned it to him in order to humiliate him. He testified that the project took several weeks, during which time Chief Baer frequently checked his work and would get upset if Hoffman was not doing it correctly. He said that "everybody" laughed about the assignment. He believed that no one had ever been asked to do this before, although Watkins testified that she had previously been assigned this task.
Also during his light duty assignment, Hoffman was attending physical therapy during work hours, two times a week for one hour each time. Hoffman testified that Baer asked him on a daily basis about his injury, about what the doctors were saying about it, about when his therapy appointments were, and when he was going to be released from light duty restrictions. At some point, Hoffman provided the Chief with a schedule of his therapy appointments. According to Hoffman, the questions continued even after Chief Baer had his therapy schedule.
In December 2008 or January 2009, while Hoffman was working in the Human Resources Department, he told employee Karen Sorrel that he believed Baer had been harassing him ever since he returned to work on light duty the preceding April. Sorrell went to the Department head Nena Peplow, and Peplow asked Sorrel to encourage Hoffman to meet with her (Peplow). Sorrel had that conversation with Hoffman; he indicated he was uncomfortable going forward with his complaint because he was afraid of retaliation*fn1 .
Eventually, however, Hoffman did request to meet with Peplow via an email dated February 5, 2009. She met with him soon thereafter. He repeated the verbal complaint he made to Sorrel and told Peplow he was afraid of retaliation. Peplow told Hoffman he did not need to worry about retaliation. She asked him to come to her to report any continuing behavior and that she would discuss his concerns with Gary Anna, Bradley's Vice President of Business Affairs.
Peplow did confer with Anna, telling him that Hoffman "felt that he was being checked on, that the chief wanted to know where he was if he wasn't in the office, that he felt that he was being treated in a different manner because of the work comp injury." Hoffman then met with Anna in February 2009, raising orally the same concerns he had raised with Sorrel and Peplow. Anna reminded Hoffman about Bradley's policies and expectations regarding treatment of employees and against retaliation, and he assured Hoffman that he would remind Baer of those policies and "take action if necessary or as appropriate if that kind of behavior exhibited itself." Anna also asked Hoffman to return to him if the behavior continued. Anna followed up by talking to Chief Baer.
About a month later, Baer and another police officer, Sergeant
Hutchinson, began making jokes about Hoffman's race*fn2
after he returned to work on light duty. Hoffman recalled
about 4 or 5 times when this occurred before his employment was
terminated. The examples Hoffman provides
include bringing in rice-based food on several occasions and
suggesting Hoffman would like it, along with comments that included
derogatory names like "slant eyed" and "rice burner." When this
happened, Hoffman just laughed and played along; he did not indicate
that he was offended, and he never addressed these racial comments in
his conversations with Sorrel, Peplow or Anna. He conceded that this
conduct did not affect his work or his ability to perform his job, and
he generally got along with Hutchinson despite the comments.
Although this behavior again began to concern Hoffman, he did not formally report it to Sorrel, Peplow or Anna. Instead, he mentioned it to Sorrel when he saw her at a Bradley soccer game at some point during 2009*fn3 . Sorrel suggested that Hoffman share his concerns about the Chief with Lt. Troy Eeten, one of Hoffman's supervisors in the Police Department, before he returned to the Human Relations Department, in accordance with the Employee Handbook's policy for pursuing a grievance. While Hoffman does not dispute that she told him that, he does dispute whether that is the proper procedure when a department head is the harasser. At any rate, Hoffman believed that Sorrel meant that he could not pursue his concerns further with her or with Peplow unless he first talked to Eeten, and, fearing retaliation*fn4 , he declined to talk to Eeten.
Around this same time, he also saw Peplow in her office when he delivered some papers. She asked how things were going, and Hoffman stated that "he's kind of started up again." Peplow told him to "feel free" to come talk to her if he needed to. Hoffman did not return to talk to Peplow, again fearing retaliation.
At some point around July or August of 2009, there was talk of the possibility of moving Hoffman to second shift to reduce his interaction with Chief Baer. Hoffman, who was divorced with two children, opposed such a transfer because of the impact it would have on his familial responsibilities. He also told Sorrel that he believed the transfer was actually in ...