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Pearson v. Illinois Bell Telephone Co.

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

December 20, 2016

GARY PEARSON, Plaintiff,

          Gary Feinerman Judge.


         Gary Pearson alleges that Illinois Bell Telephone Company, his former employer, and Michael Wiley, his former supervisor, discriminated against him on the basis of race in violation of 42 U.S.C. § 1981 when they fired him from his job as a service technician. Doc. 9. With discovery closed and jury trial set for February 23, 2016, Doc. 59, Defendants have moved for summary judgment, Doc. 51. The motion is denied.


         The following facts are set forth as favorably to Pearson as the record and Local Rule 56.1 permit. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). On summary judgment, the court must assume the truth of those facts, but does not vouch for them. See Arroyo v. Volvo Grp. N. Am., LLC, 805 F.3d 278, 281 (7th Cir. 2015).

         Illinois Bell sells AT&T-branded telephone, internet, and television services to Illinois consumers. Doc. 62 at ¶ 1. Pearson, who is African-American, worked for Illinois Bell as a customer service technician from 1990 until his firing in January 2013. Id. at ¶ 2; Doc. 66 at ¶ 1. In 2010, Pearson began working out of Illinois Bell's Hastings Garage. Doc. 62 at ¶ 7; Doc. 63 at 5; Doc. 66 at ¶ 4. Pearson's direct supervisors there were Rudy Hicks and later, starting in April 2012, Sandra Jackson. Doc. 62 at ¶¶ 8-9; Doc. 66 at ¶ 4. Wiley, to whom Hicks and Jackson reported, was his second-level manager. Doc. 62 at ¶ 3; Doc. 66 at ¶ 4. Both Hicks and Jackson are African-American, while Wiley is white. Doc. 62 at ¶ 10; Doc. 66 at ¶ 4.

         Due to the consumer-facing nature of his work, among Pearson's job criteria were punctuality and dependability, including reporting to work on time each morning. Doc. 62 at ¶¶ 14-15. To enforce those expectations, Illinois Bell had a progressive system of discipline for attendance issues. Id. at ¶¶ 18-19; Doc. 66 at ¶ 8. Under that system, each successive attendance violation within a year of the previous violation triggered increasingly stiff penalties: verbal warnings, then written warnings, then suspensions of increasing lengths, and, eventually, termination. Doc. 66 at ¶ 8. Wiley testified that the progression began with “verbal warnings” and “written warnings, ” and then was followed by a “one day suspension, three day suspension, five day suspension, ten day suspension, suspension pending termination and termination.” Doc. 63-5 at 6. Both single tardy arrivals and absences from work of any length (including multiple-day absences) qualified as single attendance violations. Doc. 66 at ¶ 10. Although first-level supervisors like Hicks and Jackson directly administered the discipline, Wiley was involved not only with setting attendance policies but also with any discipline issued above the level of a warning. Doc. 54-1 at 11, p. 64; Doc. 63-2 at 9.

         Pearson's workday at the Hastings Garage was 8:00 a.m. to 4:30 p.m. Doc. 62 at ¶ 7. Illinois Bell expected its technicians to report to work on time for a mandatory morning meeting in the crew room. Doc. 54-3 at 3, p. 11; Doc. 62 at ¶¶ 17, 31. Technicians who arrived by 8:05 were not considered tardy, while technicians who arrived after 8:10 were. Doc. 62 at ¶ 31; Doc. 66 at ¶ 25. The parties disagree over how management treated tardiness of between five and ten minutes. Doc. 66 at ¶ 25. Because Wiley testified in his deposition that a technician would be considered tardy only “after probably ten minutes late, somewhere in there, ” Doc. 63-5 at 7, this dispute is resolved in Pearson's favor for summary judgment purposes: only lateness of ten minutes or more made a technician officially “tardy” and thus potentially subject to discipline. Technicians could be late approximately three times before supervisors would begin to record their tardies in the progressive discipline database. Doc. 62 at ¶ 31.

         When Pearson began working at the Hastings Garage, his record contained only a single instance of attendance-related discipline: a verbal warning for missing work on Sept. 21, 2009. Id. at ¶ 26; Doc. 66 at ¶ 10. Before 2009, he had maintained a spotless disciplinary record for nearly twenty years. Doc. 63-2 at 5; Doc. 66 at ¶ 6. But Pearson began to accumulate a formidable disciplinary record at Hastings. Hicks verbally warned Pearson for being absent from June 4 to June 10, 2010, and then verbally warned him again for being absent from August 9 to August 13, 2010. Doc. 62 at ¶¶ 27-28. Hicks next issued Pearson a “first written warning”-the next rung up the progressive discipline ladder-for being absent from February 3 to February 9, 2011. Id. at ¶ 29. Thereafter, Pearson was ten to fifteen minutes late reporting for duty on three days in May and June 2011, but-consistent with the above-mentioned policy of waiting until tardiness became recurrent to impose formal discipline-received only informal counseling on those occasions. Id. at ¶ 31. After Pearson was fifteen minutes late for work on July 14, 2011, he received a second “first written warning” from Hicks. Id. at ¶ 30. Pearson then received a third “first written warning” for being ten minutes late on November 1, 2011. Id. at ¶ 32.

         Pearson was absent on November 29 and 30, 2011, prompting a “second written warning” and one-day suspension, which Hicks issued on December 21 and which Pearson served on December 23. Id. at ¶ 33. Pearson was absent again on January 19, 2012, leading Hicks to prepare a “final written warning” and three-day suspension. Id. at ¶ 34. Before the suspension could be formally issued, however, Pearson took disability leave from February 7 until August 20, 2012. Id. at ¶ 34-35, 38. Most of that prolonged disability leave was later deemed an absence because it was not covered by the Family and Medical Leave Act. Id. at ¶ 39. When Pearson returned, he received the “final written warning” and three-day suspension, which covered both the January 19 absence and the February-to-August leave. Id. at ¶ 38.

         Pearson nominally disputes certain aspects of the foregoing attendance history, relying exclusively on a technicality: some corroborating records were not signed by the manager who imposed the discipline. Id. at ¶¶ 26-29, 34, 51. But Pearson points to no contrary evidence (i.e., evidence that he was present when the records assert he was absent or tardy, or evidence that he did not serve the suspensions in question), and the mere absence of a signature is no reason to ignore an employer's otherwise admissible records. See Collins v. Am. Red Cross, 715 F.3d 994, 999 (7th Cir. 2013) (“[W]e see no reason why a reasonable jury would reject a proposition supported by some, albeit imperfect, evidence in favor of a proposition supported by no evidence at all.”). The foregoing attendance history is therefore taken as accurate.

         Between 2010 and 2012, Pearson also served several suspensions for falling short of performance expectations, for which there was a progressive discipline track separate from the track for attendance issues. Doc. 62 at ¶ 36. For example, Pearson was suspended for taking a customer's DSL out of service unnecessarily (although Pearson denies that he did so). Ibid. Pearson received his fifth and final performance-related suspension in November 2012, when Jackson issued a ten-day suspension for failing to check an F1 terminal before performing service and for failing to seek help from a manager when he could not access a customer's residence. Id. at ¶ 40. (Pearson again believed the suspension was unwarranted, this time because he did not think checking the terminal was necessary. Ibid.) The parties disagree over what exactly transpired between Jackson and Pearson when Jackson announced this suspension. Id. at ¶¶ 43-48. For the purposes of resolving this motion, the court credits Pearson's testimony where it diverges from Jackson's.

         On November 27, the day Jackson issued the suspension, Jackson met in person with Pearson and a union steward, Lawrence Payne, to announce her decision and discuss the performance issues that precipitated it. Id. at ¶ 42; Doc. 63-1 at 10, p. 125. It is undisputed that Pearson was to serve the suspension beginning the week of December 3, that Jackson gave him those dates in writing at the meeting, and that she at least attempted to inform him of those dates verbally as well. Doc. 62 at ¶¶ 42, 45; Doc. 63-1 at 10, p. 125. Pearson, however, was “irate” upon learning of the suspension. Doc. 63-1 at 10-11, pp. 125-26. Presumably because of his anger, Pearson does not recall many details of the meeting, including what, if anything, he was told about the dates of the suspension; Jackson testified that Pearson cut her off when she tried to explain them, saying he knew the dates were in the letter. Doc. 54-4 at ¶ 14; Doc. 63-1 at 10-11, p. 125-28. For whatever reason, Pearson did not get the message, and he left the meeting under the misimpression that his suspension was to begin the next day. Doc. 63-1 at ¶ 11, p. 129.

         The next morning, November 28, Pearson did not report to work at the beginning of his shift. Ibid. Payne called Pearson, informed him of his error, and told him that Jackson was looking for him. Doc. 62 at ¶ 47. Pearson then called Jackson, explained his mistake, and asked if he could take a vacation day to cover his absence. Doc. 63-1 at 12, p. 132. Jackson replied that she would see what she could do, and instructed Pearson to come in “and we'll work something out.” Ibid. Pearson reported for work ninety minutes late. Doc. 62 at ¶ 49.

         Upon being informed of Pearson's latest tardy arrival and after consulting with several other managers, Wiley suspended him pending termination, the next stage of progressive discipline. Doc. 54-4 at ¶ 16; Doc. 62 at ¶¶ 50-51. The notice cited his history of attendance problems, with his late arrival on November 28 being the final straw. Doc. 62 at ¶ 51. Upon further review, Wiley terminated Pearson on January 24, 2013. Id. at ¶¶ 52-55. The stated basis for the decision was Pearson's track record of attendance violations, culminating in the November 28 incident; his performance-related disciplinary history was not a factor. Id. at ¶ 51.

         Pearson does not deny that he accumulated the extensive list of attendance-based discipline described above, the existence of which transformed his late arrival on November 28 into a fireable offense. Doc. 61 at 6. Rather, Pearson believes his disciplinary record does not tell the whole story; he contends that Wiley bore a racially motivated grudge against him and, as a result, singled him out by enforcing attendance ...

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