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Kemp v. County of Cook

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

November 3, 2016

BRENDA KEMP Plaintiff,


          SHARON JOHNSON COLEMAN United States District Court Judge.

         Plaintiff, Brenda Kemp, brought this action against Cook County, the Office of the Chief Judge of the Circuit Court of Cook County, the Office of the Transitional Administrator, Earl Dunlap, and Philippe Magloire, alleging that the defendants retaliated against her in violation of the Family Medical Leave Act, discriminated against her based on her age in violation of the Equal Protection Clause, and violated her due process rights. The defendants now move for summary judgment. For the reasons set forth herein, that motion [47] is granted.


         The following facts are undisputed. The Cook County Juvenile Temporary Detention Center provides temporary secure housing for youths 10-16 years of age who are in custody pending the adjudication of their cases. At the times relevant to this suit the plaintiff, Brenda Kemp, was the JTDC's Commissary Manager. (Dkt. 60 ¶ 2). Her direct supervisor was JTDC Deputy Executive Director Philippe Magloire. (Dkt. 53 ¶ 27).

         In 1999, a civil suit was filed in this district challenging the constitutionality of the conditions of confinement in the JTDC. A Memorandum of Agreement was executed in that suit, and a transitional administrator was appointed to implement that agreement. Doe v. Cook County, 99 C 3945, dkts. 67, 330 (N.D. Ill.). At the times relevant here, Earl Dunlap was the transitional administrator of the JTDC. Id. Bruce Burger was the deputy transitional administrator responsible for personnel. (Dkt. 53, ¶ 17). Louise Akins, a labor relations analyst at the JTDC, was responsible for scheduling predisciplinary and grievance hearings and processing background documents. (Dkt. 49-7 10:10-11:6).

         The Cook County Juvenile Temporary Detention Center (“JTDC”) contains one kitchen and 30 living units, some of which have commissaries. (Dkt. 60, ¶ 8). Kemp was initially hired by the JTDC in 1992 as a “Dietician 3, ” a supervisory role responsible for managing food services in the JTDC. (Id. ¶ 9). In that role, Kemp oversaw intermediate supervisors, cooks, food service workers, and janitors. (Id.).

         When Dunlap became the transitional administrator, he was placed in charge of all management, personnel, purchasing, food, laundry, and programmatic functions of the JTDC and was granted the power to establish personnel policies; to create, abolish, or transfer positions; and to hire, fire, promote, transfer, and evaluate the management and staff of the JTDC. (Dkt. 53 ¶¶ 13- 14). Dunlap established disciplinary procedures through which a supervisor or deputy with a personnel issue could refer that issue to deputy transitional administrator Burger, who would conduct an investigation, have a pre-disciplinary hearing with both parties present, and report his findings to Dunlap for approval or denial. (Id. ¶ 20).

         When Dunlap took over the JTDC the Food Services Department had two managers, Kemp and “Ms. K.”. (Id. ¶ 22). In 2008 Dunlap temporarily relieved Kemp of her duties as Manager of Food Services, citing unacceptable work performance and her participation in creating a hostile work environment. (Id. ¶ 23). Rather than firing or demoting Kemp, Dunlap instead created the position of Commissary Manager for Kemp. (Id. ¶ 25, dkt. 60 ¶ 2). As the Commissary Manager, Kemp was responsible for ordering, receiving, managing, and distributing commissary inventory and for cost reconciliation. (Dkt. 60 ¶ 2).

         In 2012 Magloire became Kemp's direct supervisor when food services were added to his areas of responsibility. (Dkt. 53 ¶ 27). Kemp alleges that Magloire was rude to her and “screamed” at her about her work performance and cleanliness on multiple occasions. (Id. ¶¶ 32-33). On November 20, 2012, Magloire inspected the commissary storage cages and found expired food products. (Id. ¶ 28). He directed Kemp to ensure that commissary items were consumed prior to their expiration dates. (Id.). On November 23, 2012 Magloire and another supervisor conducted a performance evaluation of Kemp. (Id. ¶ 31). The evaluation concluded that Kemp met standards, but noted that Kemp's storage areas needed to be maintained, cleaned, and organized; that food products with upcoming expiration dates needed to be rotated; and that expired items needed to be disposed of immediately. (Id.). It further noted that Kemp needed to develop a system to accurately track the commissary items that each center was receiving. (Id.). On June 13, 2013, Magloire conducted another inspection of the commissary storage cages and found a large number of expired products, some of which had expired in 2012. (Id. ¶ 35). As a result of this discovery, Magloire recommended that Kemp be referred to the Office of Government and Labor Relations so that a pre-disciplinary hearing could be scheduled. (Id. ¶ 36, dkt. 53 ¶ 20).

         Louise Akins provided Kemp and Magloire notice of the date, time, and location of the hearing. (Id.) She also put together a pre-disciplinary packet containing the violated policy provisions, Magloire's narrative, and Kemp's prior disciplinary record. (Id.) Kemp's disciplinary record reflected that she had received a written reprimand in 1992. (Id. ¶ 45). It also reported a twenty-nine day suspension in 2005, despite that suspension having been subsequently overruled by the Cook County Employees Appeals Board and ordered removed from Kemp's personal record. (Id. ¶ 37).

         On July 23, 2013, Burger held the hearing with Kemp and Magloire. At the hearing, Kemp admitted her guilt based on Louise Akins' advice that if she did so she would only receive a few days suspension. (Id. ¶ 41, dkt. 53 ¶ 22). Kemp did testify, however, that she had to miss work because her husband had been ill, resulting in inventory issues because she was having to “play catch up”. (Dkt. 53, ¶ 43). No one brought up the Family Medical Leave Act during the pre-disciplinary hearing. (Id. ¶ 42).

         Following the hearing, Burger recommended terminating Kemp's employment based on her violation of her duty to protect the children at the JTDC. (Id. ¶ 44). Burger did not know that Kemp had been on FMLA leave, and he subsequently testified that Kemp's age and use of the FMLA did not have any bearing on his decision regarding her termination. (Id. ¶ 46). He also testified that if Kemp's disciplinary record had only contained the 1992 reprimand he would probably have recommended her suspension rather than her discharge. (Id. ¶ 45). Burger provided Dunlap with his recommendation and findings. Dunlap considered them and terminated Kemp's employment. (Id. ¶ 47). Dunlap subsequently stated that he concurred with Burger's recommendation because he believed the expired food to be a safety issue and felt that Kemp had acted negligently and failed to take responsibility for her duties. (Id. ¶ 54). Burger later learned from another employee that Kemp's suspension had been overturned and requested, but never received, a copy of the decision overturning the suspension. (Id. ¶ 48). Kemp also learned from her coworkers that her overturned suspension had been included in her disciplinary record. (Id. ¶ 49). Although an employee can overturn a disciplinary decision by filing a grievance or a judicial appeal, Kemp did not file a grievance or appeal her termination. (Id.).

         After her termination, Kemp saw her position posted on CareerBuilder with a salary of $45, 000, $30, 000 less than she had earned. (Id. ¶ 57). Other employees told her that the JTDC had decided to make a budget cut and that it wouldn't “bring her back.” (Id.). Kemp also heard that the 31-year-old employee who replaced her had fewer responsibilities as Commissary Manager. (Id. ¶ 58; dkt. 60 ¶ 25).

         Kemp admits that she was never denied FMLA leave and that she never complained about being denied FMLA leave. (Dkt. 53 ¶ 59). Kemp believes, however, that she was dismissed because her attendance was inconsistent and because she was unable to fulfill her duties as a result of her frequent leaves. (Id.). Before taking FMLA leave, Kemp would call, e-mail, or meet with Magloire to notify him that she was taking leave. (Dkt. 53 ΒΆ 18). All management-level ...

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