United States District Court, N.D. Illinois, Eastern Division
DARRELL W. TITUS, Plaintiff,
ILLINOIS DEPARTMENT OF TRANSPORTATION, BOB DUDA, GIOVANNI FULGENZI, AND DIANE M. O'KEEFE, Defendants.
MEMORANDUM OPINION AND ORDER
THOMAS M. DURKIN, District Judge.
Darrell W. Titus, who is African-American, alleges that his employer, the Illinois Department of Transportation ("IDOT"), and IDOT employees Bob Duda, Giovanni Fulgenzi, and Diane M. O'Keefe, discriminated and retaliated against him based on his race in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; and pursuant to 42 U.S.C. § 1983. R. 30. Defendants have moved for summary judgment. R. 81. For the following reasons, Defendants' motion is granted.
Since October 1994, Titus has worked as a "Highway Maintainer" for IDOT's Department of Emergency Traffic Patrol ("ETP"). R. 90 ¶ 1. Highway Maintainers, also known as "ETP Drivers, " are "first responders" to traffic emergencies on highways, and are responsible for assisting motorists and removing debris from traffic lanes. Id. ¶ 2.
On June 8, 2009, Titus was assigned to patrol a portion of the Eisenhower Expressway. Id. ¶ 37. Prior to the end of his shift, Titus received a call from an IDOT dispatcher instructing him to assist a fellow ETP Driver with two vehicles that had broken down on the shoulder of the highway. Id. ¶ 38. Titus refused and told the dispatcher that he was going to go home. Id. ¶ 39. This prompted Titus's supervisor, Lloyd Colbert, to get on the radio and tell him, "[N]o, Titus. You go over there and help." Id. ¶ 40. Titus responded, "No, I'm going home. My shift is over." Id. ¶ 41. Titus then drove to the IDOT garage to retrieve his personal vehicle. Id. When Titus arrived at the garage, he and Colbert began to argue. Id. ¶ 42. Colbert maintains that Titus "yelled and cursed at him." Id. Titus denies this allegation and asserts that he was only speaking "aggressively." Id. In any event, Titus does not dispute that he refused to follow Colbert's order to provide assistance to the other ETP Driver. Id. ¶¶ 39-42.
Following the incident, Colbert prepared a statement detailing Titus's refusal to obey his order and a separate statement describing their altercation in the garage. Id. ¶ 43. In accordance with IDOT procedures, ETP Manager Bob Duda conducted an investigation and collected statements from five other employees who had personal knowledge of the incident. Id. ¶¶ 20, 44-45. One employee wrote that "[t]his is getting old... we need help in this matter." Id. ¶ 45. Other employees commented in their statements that they heard Titus swearing over the IDOT radio frequency. Id. ¶ 45. Another employee email described Titus as a "bad actor." R. 93-42.
Duda submitted the results of his investigation to Operations Manager Anthony Dilacova, who determined that a Notice of Rule Infraction should be issued. Id. ¶¶ 21-22, 48. The Notice of Rule Infraction and witness statements were then forwarded to the Personnel Services Manager for IDOT's District One, defendant Giovanni Fulgenzi, who made the final determination that Titus had violated employee policy by "refus[ing] to comply with direct orders of a supervisor." Id. ¶¶ 49-50. Defendant Diane O'Keefe was the Regional Manager (the highest ranking position) for IDOT's District One during this time period. R. 90 ¶ 3. Discipline notices sent to employees are signed on Diane O'Keefe's authority. R. 83-3 ¶ 46.
Titus received a 15-day suspension for "insubordination, disruptive conduct, and poor work performance." Id. ¶ 53. Titus began serving his suspension on August 16, 2009. Id. He remains an IDOT employee. Id.
Titus did not file a grievance with IDOT challenging the suspension. Id. ¶ 54. He did, however, file an EEOC charge on February 22, 2010. R. 90 ¶ 6. Titus had also previously filed EEOC charges in 2004, 2005 and 2006. R. 90 ¶ 6. The EEOC issued Titus a "right to sue notice" on November 18, 2010. R. 83-1 at 2.
In August 2004, almost five years prior to the incident at issue in this case, an IDOT staff member not named as a defendant in this case told Titus "that if his comments about discrimination [did] not cease, that further discipline [would] be administrated." R. 93-44. The IDOT staff member made this comment to Titus after Titus had informally accused his IDOT managers of changing his shift because of his race. See id. The record does not reflect whether this incident was the basis for Titus's 2004 EEOC complaint.
Prior to the events of this lawsuit, Titus had been disciplined seven times, but only one other time since 2007. R. 83-9 at 1. Of the eight disciplinary actions, five were for "insubordination, " like the suspension at issue here, and four involved a "failure to follow [his] supervisor's orders, " which was also provided as a justification for Titus's suspension in this case. R. 83-9 at 1; R. 90 ¶ 17. Four of the prior seven disciplinary actions resulted in suspensions, beginning with a suspension of one day, followed by suspensions of three, five and ten days. R. 90 ¶ 17.
Titus cites three other white IDOT employees he alleges committed similar violations but who he alleges were disciplined more leniently. Williams Macklin is an ETP Driver like Titus. R. 90 ¶ 73. Since 2007, Macklin has been disciplined six times, including twice for insubordination, but never for a failure to follow orders. See R. 93-21. Macklin has been suspended three times, including suspensions of one day, 15 days (reduced to five after a grievance process), and five days (expunged after a grievance process). See id.
James Barch is not an ETP Driver in the Bureau of Traffic Operations, but a highway maintainer in the Bureau of Maintenance Operations. Nevertheless, like Titus, he is employed by IDOT's District 1, and as such, any discipline he receives is reviewed by Fulgenzi and O'Keefe. See R. 90 ¶¶ 3, 35, 49-50. Since 2003, Barch has been disciplined four times, including twice for insubordination, but never for a failure to follow orders. Barch has been suspended once for one day. See R. 93-20.
Anthony Altmeyer also is not an ETP Driver, but is a highway maintainer in District 1. See R. 102 ¶ 35; R. 93-21. Since 2007, Altmeyer has been disciplined six times, including once for insubordination, but never for a failure to follow orders. See R. 93-21. Altmeter has been suspended four times, including suspensions of five days, ten days (reduced to one after a grievance process), ten days again (reduced to five after a ...