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Salvador Garcia v. City of Chicago

November 5, 2012


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


Plaintiff Salvador Garcia was an Auditor in the Tax Division of the City of Chicago's Department of Revenue from 2003 until 2010. In this lawsuit, Plaintiff alleges that the City imposed unfair terms and conditions of employment, and ultimately terminated him, based on his national origin and age. Plaintiff also alleges that his suspension and ultimate termination were in retaliation for engaging in protected activities. Plaintiff asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; under 42 U.S.C. § 1981; and under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 623. Defendant now moves for summary judgment, arguing that Plaintiff is unable to prove any of his claims. For the reasons explained here, the motion is granted.


Plaintiff is of Mexican national origin and was born in 1968. (Resp. to Def.'s Rule 56.1(a)(3) Statement of Undisputed Material Facts [117], hereinafter "Pl.'s 56.1", ¶ 1.) Beginning on April 1, 2003, Garcia worked as an Auditor in the Tax Division of Defendant's Department of Revenue. (Pl.'s 56.1 ¶ 18.) In his first position, as an Auditor I, Garcia's duties included interpreting ordinances, reviewing taxpayers' financial records and tax returns, and determining whether taxpayers had additional tax liability. (Id.) Bea Reyna Hickey, also of Mexican origin and nine years older than Plaintiff, was the Director of the Department of Revenue during Garcia's employment there, and William Cerney, who is American and twelve years older than Plaintiff, was the Deputy Director of the Tax Division. (Def.'s Local Rule 56.1(a)(3) Statement of Undisputed Material Facts [106], hereinafter "Def.'s 56.1", ¶¶ 8-9; Cerney Dep. [118] 14:9-22, 16:5-6.)

Garcia acknowledged that the only time he explicitly revealed his national origin to those "higher up in the hierarchy" was when he completed his employment application materials. (Garcia Dep.*fn1 5:8-16.) He nevertheless contends that those supervising and managing him, including Hickey, Cerney, Department Manager Rommel Pitchan, and Assistant Deputy Michael Luzzi, were aware of his Mexican origin and his age. (Garcia's Statements of Addnl. Facts [117], hereinafter "Pl.'s Addnl.", ¶¶ 3, 5.) For example, Garcia points out that he told his supervisor and other co-workers about a trip to Mexico to visit his family in July or August of 2009. (Pl.'s Addnl. ¶ 1.) He occasionally translated Spanish in the office, and he brought Mexican food to an office Cinco de Mayo celebration as an example of food from his heritage. (Garcia Dep. 310:1-24, 311:1-2; Pl.'s Addnl. ¶ 2.) Plaintiff notes, further, that the Tax Division hangs a calendar in the office that shows the month and day of employee birthdays. (Pl.'s Addnl. ¶ 4.) (Defendant asserts that the calendar did not include birth years. (Def.'s Resp. to Pl.'s Rule 56.1 Statement of Addnl. Facts [125], hereinafter "Def.'s Resp. to Pl.'s Addnl.", ¶ 4.)) Cerney testified that he did not know Garcia's age or national origin when Garcia was terminated on May 5, 2010. (Cerney Dep. 37:17-20; Pl.'s 56.1 ¶ 1.)

Garcia first felt discriminated against based on his age when he was asked to do collections work after being hired. (Garcia Dep. 167:22-24, 168:1.) The parties do not explain the distinction between "collections" and "assessments," but Garcia considered collections work a demotion. (Garcia Dep. 148:1-12.) He did not explain the basis for his belief that the collections assignment was based on his age, beyond asserting that he was the only person assigned to collections among approximately seven newly hired employees, at least some of whom were non-Mexican and under forty. (Garcia Dep. 148:13-24, 149:1-17, 168:17-22, 169:9-23.)

Garcia believes national origin discrimination was the reason that he was not promoted as rapidly as less-experienced auditors who, he believes, collected less in assessments than he did in collections. (Garcia Dep. 150:2-21, 151:1-14.) Garcia was promoted to an Auditor II position on April 1, 2005. (Def.'s 56.1 ¶ 21.) Though he applied for promotion to an Auditor III position three or four times during his employment at the Department of Revenue, he was never promoted beyond the rank of Auditor II. (Garcia Dep. 152:8-17.) Garcia testified (without identifying the source of his information) that Robert Rachowicz, who was hired around the same time as Garcia, collected only $12,000 in assessments while Garcia collected $1 million in collections, but was promoted to Auditor II before him at some point in 2004 or 2005. Rachowicz is of Polish national origin and was in his twenties. (Garcia Dep. 148:13-21, 150:2-24, 151:1-5.) Garcia also notes the promotions of Crystal Scrimgeour and Mike Kielar, both "White Americans" under age 40, to the position of Auditor III. (Garcia Dep. 151:6-14, 152:18-21, 153:1-16.) Garcia estimates that Scrimgeour was promoted in 2007 (Garcia Dep. 151:11-12); the record does not reveal Kielar's promotion date or Kielar's or Scrimgeour's hire dates. Garcia acknowledged that he did not know Scrimgeour's or Kieler's work experience beyond their work in the audit division. (Garcia Dep. 153:19-24, 154:1-3.)

Each time Garcia applied for an Auditor III position, he acted on his own initiative in response to a job announcement he saw posted "on the board." (Garcia does not explain what "the board" is, nor to whom it is visible.) (Garcia Dep. 152:14-17.) In 2007 and 2008, he was interviewed for an Auditor III position by a number of person whose names he does not recall. (Garcia Dep. 151:13-24, 152:1-13.) Audit Supervisor Mark Pekic described the promotion practice in a general way. (Pekic Dep.*fn2 109:14-24, 110:1-24, 111:1-13.) Neither party offered evidence concerning the process of review for Garcia's own applications for promotion.

In addition to discrimination in promotions, Garcia asserts that management made it difficult for him to complete audits by assigning him to a new manager in 2009 who required him to revise his work repeatedly (Garcia Dep. 107:2-7, 143:1-24, 306:15-22); by preventing him from traveling to complete audits in 2009 (Garcia Dep. 106:1-7, 142:14-23); by denying his request to accrue compensatory time in 2009 (Garcia Dep. 195:17-24, 196:1-24, 197:1-2); and by denying his request to roll-over more than three days of accrued vacation time to 2010 (Garcia Dep. 143:8-24, 144:1-23). Garcia alleges, as well, that supervisors erroneously denied him leave under the Family Medical Leave Act ("FMLA") in 2010 before eventually approving the leave. (Pl.'s Addnl. ¶ 28.)*fn3 He asserts that on unspecified dates co-workers lied (Garcia does not say to whom) about feeling threatened by Garcia, noting, in particular, Auditor IV Katina Drake's accusation that Garcia punched her cubicle, and Mark Pekic's assertion that Garcia blocked the doorway of Pekic's office. (Garcia Dep. 154:16-21, 171:12-24, 180:11-22, 233:12-19.) As other evidence of discrimination and retaliation, Garcia asserts that Pekic was "antagonizing" and "harassing" toward him, including "yell[ing], scream[ing], and pound[ing] his [Pekic's] fist on the desk whenever he addresses me [Garcia]," and that Pekic called him a thief.*fn4 (Garcia Dep. 154:10-13.)

Garcia admits that no City employee ever made a direct derogatory comment about his national origin.*fn5 (Garcia Dep. 163:11-13.) Garcia testified, however, "there's really no conclusion that I could come up with" to explain his difficulties with Defendant "except that . . . people in the department had something against me." (Garcia Dep. 211:7-24.) According to Garcia, "[o]nce they [management] target you, they don't let you go. They have like a vendetta against you, and they just keep coming wave after wave. They don't even give you a chance to breathe sometimes, or at least that's how you feel." (Garcia Dep. 242:21-24, 243:1.)

A. Performance Evaluations

Garcia received overall ratings of "good" or "very good" on his semi-annual performance evaluations for nearly six straight years, from the second half of 2003 through the first half of 2009. (Performance Evaluations, Ex. U to Pl.'s 56.1.) Though the overall ratings were positive, Garcia's scores on individual performance categories were less favorable. From 2005 until his termination in 2010, on all but one of his evaluations, Garcia was rated as less than "good" for at least one performance category and was placed on a Performance Improvement Plan ("PIP") by his supervisors. (Performance Improvement Plans, Ex. U to Pl.'s 56.1, at GAR000820, GAR000824, GAR000804, GAR000805, D000767, D000109, D000112, D000160, D000163.) The PIPs were aimed at various problems: four dealt with accurately computing tax liability, "[f]ormulat[ing] a sound audit approach," or the quality of submitted work; four dealt with preparing workpapers in accordance with guidelines; four dealt with complying with Department policies and procedures; three dealt with spending insufficient time "in the field" while completing audits; one dealt with the number of "tax types completed"; and four dealt with improving Garcia's attitude. (Performance Improvement Plans.) Garcia refused to sign six of the nine PIPs because he disagreed with his supervisors' evaluations of his performance. (Garcia Dep. 71:17-20, 75:14-16, 76:10-14, 78:8-13, 80:3-11, 84:22-24, 85:1-6.) Neither side has explained whether Garcia completed the PIPs to his supervisors' satisfaction.

Auditor IV Elaine Herman wrote a positive performance evaluation in 2003, referring to Plaintiff as "a great asset to our unit and a pleasure to work with." (Performance Evaluations at GAR000029.) The following year, Herman noted Garcia's "good judgment" and commitment. (Performance Evaluations at GAR000829.) Things changed in 2005, however. As of April 1, 2005, Garcia's new Audit Supervisor was Pitchan, who is Filipino and the same age as Garcia. (Pl.'s 56.1 ¶¶ 10, 21.) Pitchan wrote in Garcia's evaluation for the first half of 2005 that Garcia performed below expectations in executing a "sound audit approach," in preparing and submitting workpapers, in preparing audit programs, and in complying with policies and procedures. (Performance Evaluations at GAR000818-19.) Despite this performance, Garcia was promoted to the position of Auditor II on April 1, 2005. (Pl.'s 56.1 ¶ 21)

Pitchan reiterated his critiques in Garcia's evaluation for the second half of 2005, emphasizing a need for improvement in Garcia's workpapers. (Performance Evaluations at GAR000823.)Garcia challenged this evaluation, writing in attached comments that Pitchan's assessment was "unfair, since the level of support or developmental guidance by [Pitchan] has been woefully lacking." (Performance Evaluations at GAR000821.) Garcia testified that "for whatever reason, [Pitchan] just didn't have time for me." (Garcia Dep. 72:19-20.)

Garcia began reporting to a new Audit Supervisor, Antonio Adapon, in 2006. (Pl.'s 56.1 ¶ 21.) Adapon is Filipino, and Garcia estimated Adapon's age as between 55 and 60 years old. (Garcia Dep. 20:5-10.) As Garcia's supervisor, Adapon also described workpaper problems on his evaluation for the first half of 2006. (Performance Evaluations at GAR000802-03.)

Adapon observed errors in tax calculation, a lack of time spent in the field, "instances that [Garcia's] audit approach were unreasonable or completely off" and "a tendency to resist policies that you [Garcia] disagree[d] with." (Performance Evaluations at GAR000802-03.) Adapon specifically warned Garcia that "recurrence [of these infractions] could result to [sic] disciplinary actions." (Performance Evaluations at GAR000802-03.)

Pitchan again described problems in Garcia's evaluation for the second half of 2006. Pitchan commented, "you [Garcia] received a large amount of clearance points*fn6 . . . and at times multiple rounds of corrections needed to be made." (Performance Evaluations at GAR000806.) Garcia acknowledged that it was "not very typical" for an audit to require multiple revisions.*fn7 (Garcia Dep. 115:16-20.) Pitchan also advised Garcia to improve his customer service in response to a taxpayer complaint:

In my fourteen years with the Department, I have never read such feedback from a taxpayer. . . . Being stubborn, argumentative, uncooperative and unwillingness to listen are [a] few of the issues she had with your conduct. . . . [A] discussion between your supervisor, Antonio Adapon, yourself and I seemed to substantiate the allegations made by the taxpayer. (Performance Evaluations at GAR000806.) Assistant Deputy Michael Luzzi, who is "white American" and "between 50 and 55," added his own comments to Garcia's 2006 evaluation. (Garcia Dep. 19:21-24, 20:1-4.) Luzzi noted Garcia's "poor attitude, unprofessional behavior, stubbornness, and overall hostile nature" and referenced "previous discussions with you [Garcia] involving your immature behavior and discourteous treatment of supervisors as well as your insubordination." (Performance Evaluations GAR000811.)

Garcia disputed Pitchan's comments on his evaluation for the second half of 2006, writing that Pitchan's statements were inaccurate, that judgments about his workpapers reflected a "subjective evaluation," and that his lack of time in the field was "beyond my control." (Performance Evaluations at GAR000808.) Garcia characterized the taxpayer's complaints about his customer service as "slanderous accusations" and added that the customer had made threats to intimidate him. (Id. at GAR000809.) What his supervisor might deem stubbornness was, in Garcia's estimation, simply tenacious effort to protect the City's interest when his supervisor's interpretation was mistaken. (Id. at GAR00081.)

Charles Brown replaced Adapon as Garcia's supervisor in 2007. (Garcia Dep. 54:12-15.) Brown is "Afro-American," and Garcia estimated Brown's age as 50. (Garcia Dep. 20:18-19, 21:3.) In Garcia's evaluation for the first half of 2007, Brown wrote that he needed to improve in the "Teamwork/Leadership" category. Brown added, "we had many conversations in regard to various audit procedures you were not following" during the period. (Performance Evaluations at D000765.) Garcia's overall score for the period was 3.1 out of 4.0. (Id. at D000762.) There was some improvement in Garcia's evaluation for the second half of 2007; Brown gave him an overall score of 3.3 and wrote, "You did a much better job following the various audit procedures . . . Good work!" (Id. at D000762, D000768.) Garcia nevertheless refused to sign this evaluation because Brown "put something . . . about I [Garcia] had to improve my attitude" that he "didn't agree with." (Garcia Dep. 85:1-6.) The same day that Garcia refused to sign the evaluation, January 31, 2008, Garcia e-mailed Hickey requesting a review of his file and claiming that Pitchan had been "acting like a dictator for some time now." Garcia added that he had "remained quiet for fear of being labeled incorrectly."*fn8 (January 31, 2008 e-mail from Garcia to Hickey, Ex. Q to Pl.'s 56.1, at D003024.)

Garcia's e-mail was forwarded, presumably by Hickey, on to Luzzi, Cerney, and Pitchan. In a response addressed to Cerney, Luzzi wrote that Garcia's behavior was "outrageous" and that permitting Garcia "to run around making false and injurious statements about management needs to stop." (January 31, 2008 e-mail from Luzzi to Cerney, Ex. Q to Pl.'s 56.1, at D003023-24.) Luzzi also wrote that he was "trouble[d]" that Garcia had asserted "that he has been discriminated against because of his race . . . [although] he does not yet indicate who he believes discriminated against him or how." (Id.) Luzzi noted, further, that Garcia had filed a "Violence in the Workplace" form accusing Pitchan of wrongdoing, which was later dismissed. (When these events occurred is unexplained.) (Id.) In a response addressed to Luzzi and Cerney, Hickey acknowledged, "I know everyone is stressed by dealing with" Garcia. (February 1, 2008 e-mail from Hickey to Luzzi and Cerney, Ex. Q to Pl.'s 56.1, at D003023.)

Garcia e-mailed Hickey again on February 27, 2008, forwarding an e-mail exchange between himself and Cerney. Garcia complained to Hickey that "the parameter[s] set" by Cerney for a meeting to discuss Garcia's 2007 performance evaluation "are not acceptable." (February 27, 2008 e-mail from Garcia to Hickey, Ex. Q to Pl.'s 56.1, at D002994.) Cerney had required that Garcia provide a "detailed explanation of the reasons you [Garcia] believe your evaluation is not an accurate reflection" of performance, but directed that Garcia limit his comments to his most recent evaluation. Cerney explicitly told Garcia that "past promotional opportunities, discrimination claims, past employee of the month awards you [Garcia] were not nominated for, your claims of being put down or your training issues . . . [and] personal attacks on any other employee" could not be discussed at the meeting, but that Cerney was "available to address each of your other concerns in a separate forum." (Id.)

Hickey forwarded a copy of Garcia's e-mail to Cerney, who responded to Hickey, "this guy [Garcia] is mentally unstable and looking for attention. This is not a new observation and I believe it is one shared by [Luzzi] and [Pitchan]." (February 27, 2008 e-mail from Cerney to Hickey, Ex. Q to Pl.'s 56.1, at D002993.) Luzzi also replied, observing, "I share [Cerney's] thoughts, he is a very troubled individual . . . [Garcia] is an emotional person and often acts out on his emotions." (February 27, 2008 e-mail from Luzzi to Hickey, Cerney and Pitchan, Ex. Q to Pl.'s 56.1, at D002993.)

Brown's evaluation of Garcia for the first half of 2008 again identified problems in Garcia's work. Brown rated Garcia as requiring improvement in the "Teamwork/Leadership" category, adding, "[d]on't let your attitude overcome what I consider a very good job performance. You must improve on your attitude!" (Performance Evaluations at D000768.) In his evaluation for the second half of 2008, Brown again rated Garcia as needing improvement in "Teamwork/Leadership" and in preparation of his workpapers. Brown cautioned, "you continue to be argumentative with issues with me, co-workers, the Law Department, and the taxpayers. You need to listen more and argue less. . . . You also need to understand that because someone takes a different position than you doesn't mean they are out to get you. . . . [Y]ou have displayed the ability to do the job but your attitude clearly needs improvement." (Id. at D000110.)

Garcia again took issue with his performance evaluation, writing in reference to Brown's comments for the second half of 2008, "[f]or the past four years . . . I have been scrutinized and evaluated unjustly and unfairly." He complained that his evaluations reflected his supervisors' subjective assessments, and resulted in his being "unjustly passed over" for promotions. (Id. at D000113-14.) Garcia asserted that the evaluation system "must be changed in order for the rightfully deserving candidate to be chosen" for promotions. (Id. at D000114.) At his deposition, Garcia explained that, in his view, the evaluation process "wasn't transparent enough, and it . . . wasn't broken down enough where you could see from each perspective where you stood." (Garcia Dep. 100:15-24.) It bothered Garcia to hear "through the grapevine" about "individuals that were getting" higher evaluation scores, but who, in his opinion, "weren't producing half as much as what I [Garcia] was producing." (Garcia Dep. 101:5-12.) Garcia acknowledged, however, that he never saw the performance evaluations of co-workers and he was not sure of "the exact individuals" who received higher ratings. (Garcia Dep. 101:1-4, 14-24.)

Garcia completed sixteen audits during the first half of 2009, exceeding his goal of eleven audits and earning an overall "good" rating of 3.3 out of 4 (better than 22 of the 29 employees assessed). (Performance Evaluations at D000158; August 18, 2009 e-mail from J.C. to Cerney and Shalanda Hedrick, Ex. V to Pl.'s 56.1.) Brown wrote in Garcia's evaluation for the period, "You have clearly been one of my more productive auditors." (Performance Evaluations at D000158.) Brown also reiterated, however, that Garcia needed to improve in the "Teamwork/Leadership" category, and exhorted him: "Don't let your attitude overcome what is consider [sic] a good job!" (Id. at D000158.)

Mark Pekic, who is of Yugoslavian and Albanian national origin, and who is "[a]bout 30," became Garcia's supervisor in September of 2009 after Brown was demoted. (Garcia Dep. 66:21-22, 106:21-24; Pekic Dep. 25:1-9.) Things did not go smoothly. Garcia and Pekic had disagreed about the assessment of a particular tax while Garcia was supervised by Brown. After the City's law department ruled that the tax should be assessed in the way Garcia suggested, Pekic began acting "very mad and angry," according to Garcia. (Garcia Dep. 62:9-24.) Garcia testified that he "didn't think it was good for us [Pekic and Garcia] to interact" after the tax issue was decided in "my [Garcia's] favor." (Garcia Dep. 62:1-4.) According to Garcia, "different things" were asked of him by Pekic that were not asked of him by previous supervisors, such as including an "auditor's memo" in his files. (Garcia Dep. 108:4-13.) Garcia testified that a "Latino Peruvian" co-worker and an Italian co-worker, both under forty, also reported that Pekic required employees to do "extra" things compared to other supervisors, and that he was "difficult to work with." (Garcia Dep. 59:22-24, 60:13-24, 274:1-7; Pl.'s Addnl. ¶ 19.) Garcia also testified that on September 29, 2009, Pekic was "verbally abusive" toward Garcia when Pekic "pounded his desk with his fingers in an angry vocal tone stating that everyone has their own style of supervising and that this was his style!" (November 18, 2009 Rebuttal, Ex. K to Pl.'s 56.1, at GAR001424.) At some point while being supervised by Pekic-the exact date is not in the record-Garcia began to believe that "there was some sabotage" in one of his files, because he found mistakes in the file that he did not believe he could have made. (Garcia Dep. 111:3-24.)

Garcia had a target goal*fn9 of 12 assessments for the second half of 2009, but he did not complete a single one. (Performance Evaluations at D000161.) Target goals varied based on work assignments and the progress of all auditors in a given section of the Department. (Garcia Dep. 47:10-22, 49:17-24, 50:1-18.) According to Garcia, his monthly goals for 2009 were "established without my input." (May 4, 2010 Letter from Garcia to Hickey, Ex. K to Pl.'s 56.1, at D000032.) (The record contains no evidence about whether other employees had the opportunity to offer input before their performance goals were set.) Garcia's ...

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