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Hartigan v. Illinois Department of Transportation

United States District Court, N.D. Illinois, Eastern Division

April 22, 2015



CHARLES R. NORGLE, District Judge.

Plaintiff Sylvester Anthony Hartigan ("Plaintiff") commenced this litigation against Defendant Illinois Department of Transportation ("IDOT" or "Defendant"), alleging violations of Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq. ("ADA") and retaliation against Plaintiff for engaging in protected activity under the ADA. Before the Court is Defendant's Motion for Summary Judgment. For the following reasons, that motion is granted.


The State of Illinois vests IDOT with "the responsibility for the planning, construction, operation and maintenance of Illinois' extensive transportation network." Enabling Statutes, Ill. Dep't of Transp., (last visited April 21, 2015). Specifically, Illinois charges Defendant with the duty to repair and maintain the state's highway system. See 605 ILCS 5/4-201.6. Plaintiff began working for Defendant at the Stevenson Main Yard ("Stevenson") as a highway maintainer some time in August 2007. In its job posting, Defendant illustrates various examples of work that it expects highway maintainers to do, including, inter alia, repairing and replacing road surfaces, culverts, and storm sewers; mowing and trimming fields around the highway; and operating and servicing trucks, tractors, mowers, snow plows, cinder spreaders, compressors, motor graders, loaders, backhoes, and other light highway equipment.[2] Ill. Dep't Cent. Mgmt. Servs. Class Specification - Highway Maintainer,, at 1 (last visited Apr. 21, 2015). "[A]rduous physical labor" is required to fulfill Defendant's expectations. Id. at 2. Largely unseen in their thankless quest for safe, secure, and well-functioning roads, motorists typically see highway maintainers by dawn's early light, plowing and salting roads during brutal winters in Illinois generally and Chicago specifically. When not plowing roads, highway maintainers assist motorists, amidst the fumes, in the event of trouble. In short, Defendant's highway maintainers are commonly perceived as road warriors - tough, thick-skinned, and unflappable.

At two separate times, November 13, 2008 and November 4, 2009, Plaintiff visited his physician because he was experiencing difficulty breathing. Both times, his physician told him that his medical tests were normal, although at his 2009 visit, his physician told him that there was not an absence of Chronic Obstructive Pulmonary Disorder ("COPD") in Plaintiff.

On or about December 10, 2009, Plaintiff spoke with Yard Technician Jack Neven ("Neven"), Plaintiff's superior, about tobacco use among employees of IDOT as it related to him. Plaintiff told Neven that he was seeing a doctor for trouble breathing, and part of the problem was his exposure to cigarette smoke. Neven then called "everybody;" Plaintiff testified that Neven told the other IDOT workers at Stevenson, "[W]e have to quit smoking. You know, Sylvester's got problems, and he can't deal with the smoke." Pl. Dep. 58:9-13, cited in Pl.'s Local R. 56.1(b)(3)(C) Stmt. Add'l Facts ¶¶ 12-13 [hereinafter "PSF"].

Shortly after Neven's instruction to the other workers, Plaintiff began to experience instances of harassment at Stevenson that occurred between December 16, 2009 and September 17, 2010. On December 16, 2009, one of the acting leads (the term is used by Defendant but has not been clarified to the Court) at Stevenson, Joseph Hermann ("Hermann"), poked Plaintiff in the back, and later apologized to Plaintiff at a disciplinary meeting after Plaintiff complained (the "Touching Incident"). Plaintiff believes further (and Defendant denies) that the Touching Incident occurred as Hermann's retaliation for Plaintiff's earlier complaint of smoking by other employees. The next day (December 17), someone marked disparaging words "such as shithead' and rat'" on Plaintiff's car while it was parked in Stevenson's parking area (the "Car Words Incident"). PSF ¶ 16. Plaintiff believes that, similar to the Touching Incident, the Car Words Incident was motivated by his complaints of smoking. Plaintiff does not allege physical damage to his car. After Plaintiff complained to Neven, Neven replied that he would "take care of it on Monday [December 21, 2009]." Id. Plaintiff's car was not marked again.

Nearly one month later, on January 14, 2010, Plaintiff asserts that a dead rat was placed in his locker, although he never personally saw anything in his locker (the "Rat Incident"). The smell, supposedly from the rat, caused his locker and the adjoining locker to be removed and cleaned. Plaintiff admits that "[t]here was no rat in [his] locker when it was removed to be cleaned." Def's. R. 56.1 Stmt. Uncontested Facts Supp. Mot. Summ. J. ¶ 46 [hereinafter "DSF"].

On January 22, 2010, Robert Kohn ("Kohn" or "Mr. Kohn"), the acting lead assigned to Plaintiff, instructed other employees to watch Plaintiff while he performed maintenance in the field; one of the employees stated, "I'm not here to work. I'm here to watch you work." (the "Observers Incident"). PSF ¶ 18. When Plaintiff, in Kohn's presence, brought the Observers Incident to Neven's attention, Kohn told Plaintiff, "[L]et's take this outside." Id.

One month after the Observers Incident, on February 22, 2010, Neven posted an announcement on a bulletin board that a Yard Technician position for the Eisenhower Yard had been filled (the "Bulletin Board Incident"). This was the first time that Plaintiff had seen Neven post an announcement for a filled position. Plaintiff previously told his coworkers that he had applied for, and hoped to receive the position. Plaintiff states in his Affidavit that at some later point, Kohn handed a tissue to Hermann "to give to [Plaintiff] so that [he] could dry [his] tears for not getting the technician position." Pl. Aff. ¶ 9(e), PSF Ex. 1, cited in PSF ¶ 19.

Three days later, on February 25, 2010, Plaintiff was advanced to the acting lead worker position, and became superordinate to Kohn, his former superior. According to Plaintiff, Kohn "went out and plowed the highway that Plaintiff had just finished plowing and plowed snow into the streets. Mr. Kohn then announced on the radio that the roads were never plowed so that Plaintiff looked like he had been negligent" (the "Snow Plow Incident"). PSF ¶ 20. Plaintiff claims (and Defendant disputes) that after he reported the Snow Plow Incident to Neven, Neven "did nothing." Pl. Aff. ¶ 9(f), cited in PSF ¶ 20. How the snow fell or continued to fall, and the need to plow again is not clear in the record.

The next day, on February 26, 2010, Plaintiff claims that "he had time sheets slapped from his hands by Mr. Kohn, who was his subordinate at the time, so forcefully that everyone in the room froze. Mr. Kohn then made a comment that Plaintiff's problems had just begun" (the "Time Sheet Slapping Incident"). PSF ¶ 21. Plaintiff reported the Time Sheet Slapping Incident to Neven, stating that "it was in retaliation for complaining of smoking in the workplace." Id. Plaintiff again asserts that "nothing was ever done." Id. But Plaintiff has not alleged that it happened again.

The day after that, on February 27, 2010, Plaintiff alleges that Kohn

blocked all the parking spaces that Plaintiff normally parks in by parking his vehicle sideways. Once Plaintiff had found a more distant alternative parking space, Mr. Kohn reparked his vehicle the correct way so that there was room for other employees to park. Plaintiff brought this to Mr. Neven's attention and stated Mr. Kohn was doing this in retaliation for his complaining of smoking but to [ sic ] Mr. Neven responded that Kohn can park anyway [ sic ] he wants. [(the "Parking Incident")].

PSF ¶ 22. Two days later, on February 29, 2010, Plaintiff alleges that while he was having a conversation with a co-worker, Kohn inserted himself into the conversation and referred to Plaintiff by a series of derogatory names, including "pussy" (the "Name Calling Incident I"). PSF ¶ 23. As with the other Incidents, Plaintiff believes (and Defendant disputes) that "nothing was done" when he informed Neven about the Name Calling Incident I. Plaintiff subsequently filed a retaliation and hostile workplace complaint with the IDOT Bureau of Civil Rights ("IDOT-BCR") on March 22, 2010 (the "IDOT-BCR Complaint") against Neven and Lead Lead Ray Santoro ("Santoro"). While this was Plaintiff's first formal complaint to Defendant, Plaintiff chose to ignore Defendant's established complaint protocol regarding earlier events.

Five weeks after Name Calling Incident I, on April 6 and 7, 2010, Kohn - while he was talking to other people and in Plaintiff's presence - played an audio clip of a baby crying, stating that the clip was the ringtone employed when Plaintiff called Kohn on his cellular phone (the "Crybaby Ringtone Incident"). The record does not indicate whether Plaintiff reported the Crybaby Ringtone Incident to Neven, and does not indicate Kohn's motivation for his remark. Whether that ringtone sounded when the phone received calls from other persons is not clear in the record.

Approximately two weeks after the Crybaby Ringtone Incident, on April 19, 2010, Plaintiff was talking on his cellular phone when Kohn revved the engine of his motorcycle to the extent that Plaintiff was unable to continue his phone call (the "Revving Motorcycle Incident"). Plaintiff claims (and Defendant disputes) that when he brought the Revving Motorcycle Incident to Neven's attention, "Neven dismissingly rolled his eyes." PSF ¶ 25. How the call's delay harmed Plaintiff is not clear.

Two months after the Revving Motorcycle Incident, on June 10, 2010, Kohn insulted Plaintiff once again, calling him "mother fucker, " "cock sucker, " and "piece of shit"(the "Name Calling Incident II"). PSF ¶ 26. At some point in the conversation, Kohn also told Plaintiff "why don't you do everyone a favor and just commit suicide, " which prompted Plaintiff to call the police. Id. The responding police officer told Plaintiff that "he could not do anything because there was no physical contact or threat of physical violence." Pl. Aff. ¶ 9( l ), cited in PSF ¶ 26. The police officer spoke with Neven, who agreed to keep Plaintiff and Kohn away from each other.

On July 10, 2010, Plaintiff met with Neven for his annual performance review, at which Neven gave him a mediocre review (the "Performance Review Incident"). PSF ¶ 27. At some point during the review, Plaintiff noticed Hermann's performance review, which was "exceptional." Id.

Roughly three weeks later, on July 30, 2010, one of Stevenson's leads, Antonio Gale ("Gale") placed Plaintiff under Kohn's supervision for the day; Plaintiff claims (and Defendant disputes) that Kohn harassed him (Plaintiff does not specify how) "the entire day" (the "Harassment Incident"). PSF ¶ 28. Plaintiff then asked Gale to provide him with transportation to the clinic to let Plaintiff receive treatment for the stress and anxiety he experienced due to his interaction with Kohn; Gale refused. After Plaintiff contacted Carmen Cortese in IDOT's Personnel Department, he was provided with transportation to the clinic. At the clinic, Plaintiff was diagnosed with anxiety. At or around the same time, Plaintiff also filed an Employee Incident Report, where he claimed that his brain was injured due to stress arising from the Harassment Incident. In light of his injury claim, Defendant required Plaintiff to pass a fitness-for-duty test before it would let him return to work.

On August 3, 2010, Plaintiff met with members of IDOT-BCR to discuss the complaint he filed on March 22, 2010. The IDOT-BCR members questioned Plaintiff regarding the veracity of his complaint, and told him that he could be subject to discipline for making a false complaint. Plaintiff alleges that as he was about to sign the applicable form, the computer malfunctioned, and he was told to come back after a couple hours. Apparently, he did.

At some later time, Plaintiff (or his treating physician) requested light-duty work, which IDOT denied on August 6, 2010. When Plaintiff later attempted to return to work, Neven informed him that Plaintiff would be taking worker's compensation for his anxiety and sent Plaintiff home.

While Plaintiff was off-duty, he sent a letter dated August 30, 2010, to Fulgenzi and Gary Hannig, Illinois Secretary of Transportation ("Secretary Hannig"). Plaintiff states that the letter was his request "to come back to work." Pl. Aff. ¶¶ 8, 12, cited in PSF ¶ 50. In his letter, Plaintiff further explains:

The Situation: In December I complained of smoke in the workplace. Since the complaint I have been harassed to the extent of seeking treatment for stress attributed to bullying by the Union Steward/Acting Lead Robert Kohn.
Because based upon my certification and profession [ sic ] experience obtained with the Depart [ sic ] of Mental Health for the State of Illinois and my personal research and knowledge that Kohn had gotten into altercations resulting in the firing of one and transfers of at least two others, restraining orders filed in the courts and conduct admitted to by himself (Mr. Kohn) I find sharing a ...

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