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Owens v. Board of Education of the City of Chicago

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

September 6, 2016



          HON. JORGE L. ALONSO, United States District Judge.

         Plaintiff, Clayton Owens, lost his job as an engineer at a public high school in Chicago, where he was employed by defendant, the Board of Education of the City of Chicago (“Board”). In this lawsuit, plaintiff claims that defendant discriminated against him on the basis of age, and retaliated against him for complaining about age discrimination, in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. Defendant has moved for summary judgment. For the following reasons, the Court grants defendant's motion.


         Plaintiff, who had been a Board employee since 1975, became the Chief Engineer assigned to Wendell Phillips Academy High School (“Phillips”) in June 2012. (Def.'s LR 56.1(a)(3) Stmt. ¶ 3, ECF No. 27; Id., Ex. B, Pl.'s Dep., at 12, ECF No. 27-2.) Plaintiff's job duties included supervising and performing maintenance on the school building to which he was assigned as well as its HVAC, plumbing and electrical systems. (Id., ¶ 6.) Plaintiff was born in 1952. (Compl., Ex. A.)

         On December 3, 2012, Martine Miller began employment with the Board as a Facilities Manager. (Def.'s LR 56.1(a)(3) Stmt., ¶ 4, ECF No. 27.) She directly supervised as many as twenty engineers, including plaintiff. (Id., ¶¶ 4, 51.) Upon taking the position, she promptly met with plaintiff to discuss her expectations, which plaintiff admits were reasonable. (Id., ¶ 7.)

         According to plaintiff, he told Miller at their initial meeting that he was the plaintiff in a federal lawsuit pending against the Board (“the Dyett lawsuit”), in which he alleged that he suffered age and gender discrimination under the ADEA and Title VII while in his prior position at Walter H. Dyett High School. (Id., Ex. B, at 45:24-48:13.) He says he brought the matter up during his meeting with Miller because he thought she should know about it as his supervisor. (Id.). Her response, according to plaintiff, was to ask him, “Do you think you're going to keep your job, working for the Chicago Public Schools and you're filing a lawsuit?” (Id., Ex. B, at 46:12-14.) According to Miller, she never learned of the Dyett lawsuit until after plaintiff left the Board's employment. (Id., ¶ 73.)

         Miller states that, during the spring of 2013, she received numerous complaints about plaintiff from the staff at Phillips, including Principal Devon Horton and Director of Operations John Byrne (id., ¶¶ 9-12), although plaintiff responds that Miller either never notified him of these complaints or they were baseless (Pl.'s LR 56.1(b)(3)(B) Resp., ¶¶ 9-12, ECF No. 38). Miller claims to have personally observed during the same time frame that there were numerous electrical issues at Phillips that required urgent attention, including issues related to light switches, breaker panel doors, and fire alarm panels, but plaintiff did not address them in a timely manner. (Def.'s LR 56.1(a)(3) Stmt. ¶¶ 13-16, ECF No. 27.) Miller was also aware, based on her own observations and the complaints she received from Horton and Byrne, of a number of plumbing problems at Phillips between December 2012 and June 2013, including inoperable water fountains, toilets, sinks and faucets. (Id., ¶ 17.) According to Miller, plaintiff either did not address these plumbing issues or did not do so in a timely manner. (Id., ¶¶ 18-20.) Plaintiff responds that these plumbing issues were addressed (although he does not say by whom, or how promptly) prior to the time of his June 2013 review, as Miller knew from her periodic inspections of the premises. (Pl.'s LR 56.1(b)(3)(B) Resp., ¶¶ 18-20, ECF No. 38.)

         On March 5, 2013, Miller sent plaintiff an email, in which she explained that she had not approved his request for vacation time because he was too far behind in his maintenance and repair work at Phillips. (Def.'s LR 56.1(a)(3) Stmt. ¶ 37, ECF No. 27; id., Ex. K.) Miller explained that she believed plaintiff was not managing his time effectively, he was not accomplishing tasks in a timely manner, and he was dumping too much work on his assistant engineer, Angelica Govan. (Id., Ex. K.) Miller informed plaintiff that Byrne had contacted her to complain about plaintiff's job performance, and she described a number of plumbing repairs that plaintiff had neglected to make and other tasks he had failed to accomplish despite having had ample time in which to accomplish them. (Id.) She wrote that she expected to see “improved performance” and she would be available to “discuss a corrective action plan.” (Id.)

         On April 22, 2013, Miller sent plaintiff another email documenting deficiencies in his job performance and informing him that she would not approve his requests for vacation time until his job performance improved. (Id., ¶ 39; id., Ex. L.) Miller wrote that plaintiff had been slow to inform her[1] that Phillips had received a citation from the Health Department because there was no hot water in some of the student washrooms, which Phillips was required to correct by April 22. (Id., Ex. L.) Plaintiff had sought quotes on a new hot-water pump, but he had not corrected the violation by the deadline. (Id.) Miller wrote in her email that this was “an urgent matter that needed to be attended to, ” but plaintiff had not responded with any “sense of urgency”; he had simply waited “for a quote on a pump” when he knew there was a fast-approaching deadline imposed by the Health Department. (Id.) Miller also described some other lingering plumbing issues that plaintiff had not handled in a timely fashion, and she told him that “the perception at the school” was that “nothing [was] being repaired by you, ” and “that perception needs to change, ” so she recommended that plaintiff take training courses through his union in order to sharpen his skills. (Id.)

         Plaintiff claims that in May 2013, he mentioned his pending Dyett lawsuit to Miller again, and she replied, “I think you lost your mind by filing a lawsuit and you think you're going to keep your job. You'll see what I'm talking about.” (Id., Ex. B, 53:06-54:24.) Miller denies saying this or ever learning of the Dyett lawsuit while plaintiff worked for the Board. (Id., ¶ 73.)

         By June 2013, when Miller completed her first evaluation of plaintiff's performance, she had come to believe that his “basic skill set was not up to par, ” and she rated him “unsatisfactory.” (Id., ¶ 8.) Plaintiff claims that after Miller gave plaintiff his performance evaluation, she told him either, “I told you you wasn't going to get away with that, ” as he paraphrased at his deposition (id., Ex. B, 97:13-98:5), or, “You thought you were getting away with it. See what I'm saying?”, as he paraphrased slightly differently in the declaration he submitted with his Local Rule 56.1(b)(3)(C) Statement of Additional Facts (¶ 24, ECF No. 38-3).

         Plaintiff's unsatisfactory rating in June 2013 was the only one Miller gave to any of the engineers she supervised that year. (Def.'s LR 56.1(a)(3) Stmt., ECF No. 27, ¶¶ 51-52.) Of the fifteen engineers Miller supervised who were over forty, seven were rated “good, ” six were rated “excellent, ” and one was rated “outstanding, ” the highest rating. (Id., ¶ 53.) The engineer rated “outstanding” was 55 years old at the time; plaintiff was 61. (Id.) The only other Chief Engineer that Miller supervised was born in 1953, only one year after plaintiff, and he received an “excellent” rating for the 2012-2013 school year. (Id., ¶ 54.) Miller was born in 1957. (Id., ¶ 4.)

         In some cases, Miller formally disciplined engineers she supervised. One engineer, identified as P.G., received a “formal write-up” for poor performance, including failing to fix inoperable drinking fountains and failing to change stained ceiling tiles (id., Ex. C, at 148:15-149:19, ECF No. 27-3), which Miller came to notice sometime after giving her 2013 performance evaluations (Def.'s LR 56.1(a)(3) Reply, Ex. A, ECF No. 43-1). After going through the disciplinary process, which included “formal notification” and “grievance hearings, ” P.G. received a suspension without pay of a few days. (Def.'s LR 56.1(a)(3) Stmt., ECF No. 27, Ex. C, at 154:2-10.) He still works for the Board. (Id., Ex. C, at 149:24-150:1.) He was born in 1965. (Id., Ex. N at BOE 00319, ECF No. 27-4, at 67.) Another engineer, R.R., received similar discipline for an incident in which he started a fire by leaving equipment unattended-in fact, leaving the school building altogether-while he was in the middle of sanding floors. (Id., Ex. C, at 150:9-151:11, 154:2-10.) A third engineer, T.P., received similar discipline for leaving his school building during working hours without permission. (Id., Ex. C, at 154:12-155:12.)

         The Board closed fifty schools at the end of the 2012-2013 school year, but the engineers at the shuttered schools were retained, resulting in a surplus of engineers. (Id., ¶ 55.) Facing budget shortfalls for the 2013-2014 school year, the Board decided to lay off approximately twenty-five engineers in the fall of 2013. (Id., ¶¶ 55-56.)

         Pursuant to the collective bargaining agreement (“CBA”) between the Board and plaintiff's union, in the event of a layoff, any engineers rated “unsatisfactory” are to be laid off first, regardless of seniority. (Id., ¶ 57.) Plaintiff was selected as one of the engineers to be laid off in 2013 because he had been rated “unsatisfactory.” (Id., ¶ 58.) Miller was not aware, prior to conducting her 2012-2013 performance evaluations, that the Board was going to lay off engineers in the following fall, nor was she involved in how the Board determined which particular engineers were to be laid off. (Id., ¶¶ 61-62.) Following his layoff, plaintiff retired. (Id., ¶ 63.)


         To prevail on a summary judgment motion, “the movant [must] show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). At this stage, the court may not weigh evidence or determine the truth of the matters asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The court must view all evidence and draw all inferences in favor of the non-moving party. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).

         Plaintiff claims that the Board discriminated against him on the basis of his age and retaliated against him for complaining about age discrimination by filing the Dyett lawsuit.


         “The ADEA makes it unlawful for an employer to . . . discriminate against an individual ‘because of such individual's age.'” Ripberger v. Corizon, Inc., 773 F.3d 871, 880 (7th Cir. 2014) (quoting 29 U.S.C. § 623(a)(1)). To receive ADEA protection, employees must be forty years old or older. 29 U.S.C. § 631(a).

         On a defendant's motion for summary judgment in an employment discrimination case, “the sole question that matters” is “[w]hether a reasonable juror could conclude that [the plaintiff] would have kept his job” if he did not have a protected characteristic (in this case, advanced age), “and everything else had remained the same.” Ortiz v. Werner Enters., Inc., No. 15-2574, 2016 WL 4411434, at *3 (7th Cir. Aug. 19, 2016); see also Nagle v. Vill. of CalumetPark, 554 F.3d 1106, 1116 (7th Cir. 2009) (“We apply the same analytical framework to employment discrimination cases whether they are brought under the ADEA or Title VII.”). In answering that question, the Court must consider the evidence as a whole to determine whether, even if there is no direct admission of discrimination or other piece of ...

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