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Whitlow v. Bradley University

United States District Court, C.D. Illinois, Peoria Division

February 8, 2017

MICHAEL S. WHITLOW, Plaintiff,
v.
BRADLEY UNIVERSITY, Defendant.

          ORDER & OPINION

          JOE BILLY McDADE United States Senior District Judge.

         This matter is before the Court on Defendant's Motion to Dismiss for Failure to State a Claim (Doc. 12). The Complaint (Doc. 1) alleges claims of sexual harassment, retaliation, and gender discrimination, in violation of 42 U.S.C. § 2000e-2(a)(1). For the reasons discussed below, Defendant's Motion to Dismiss is granted.

         I. Background

         The allegations in this case arise from Plaintiff's employment at Defendant, Bradley University. Around July 30, 2007, Plaintiff began working for Defendant as a Senior Network Analyst, within Information Resources and Technology (“IRT”) for the Computing Services Department. (Doc. 1 at 3). Plaintiff reports directly to David Scuffham, the Director of System's Integration and Security. (Doc. 1 at 3). Mr. Scuffham reports directly to Sandra Bury, the Executive Director of Computing Services and Interim Chief Information Officer/Associate Provost. (Doc. 1 at 4).

         Plaintiff's Complaint arises from his interactions with Ms. Bury. Although Plaintiff's relationship with Ms. Bury has been tenuous over the past nine years, (Doc. 1 at 5-6), this Complaint deals specifically with a series of events beginning on April 17th, 2015, and culminating in this Complaint. The Court will summarize these events in chronological order.

         A. The April 17th Events

         On or around April 17th, 2015, Plaintiff was asked to cover the Bradley University Commencement for another colleague, which was apparently contrary to Plaintiff's original understanding. (Doc. 13-2 at 19). In response, Plaintiff sent two different emails. These emails resulted in a series of responses between Plaintiff, Ms. Bury, and Mr. Scuffham.

         At 9:28 AM, Plaintiff sent his first email to Ms. Bury, Mr. Scuffham, and at least one other coworker. (Doc. 13-2 at 19). In the email, Plaintiff heatedly complained about his coworkers and the request to cover the event. (Doc. 13-2 at 19). Additionally, Plaintiff accused two of his coworkers of being deceitful or dishonest in their interactions with him. (Doc. 13-2 at 19) (“Everything was going great until Rick came back. Now we are back to the same old song and dance. . . . Bottom line I am sick and tired of Shayne and the games he plays.”) (emphasis added).

         At 10:44 AM, Plaintiff sent his second email to Ms. Bury, Mr. Scuffham, and his two coworkers, Rick Sanders and Shayne Ghere. (Doc. 13-1 at 39). In the email, he stated that he would cover the event. (Doc. 13-1 at 39). He wrote:

“I would appreciate . . . no further comments about my other job. I have not yet seen a Bradley law, rule, policy, procedure, ordinance, code, etc., that says we cannot work a second job. Any further comments from anyone about my other job will be referred to Human Resources and the Provost.”

(Doc. 13-1 at 39).

         Ms. Bury replied to the 9:28AM email at 12:54 PM. (Doc. 13-2 at 18-19). She told him that his accusations were inappropriate. (Doc. 13-2 at 18-19). She informed him that if he had an issue with a coworker that he should contact Mr. Scuffham or her. (Doc. 13-2 at 18-19). She thanked him for being willing to cover the event. (Doc. 13-2 at 18-19). And lastly, she informed him that she had asked HR if there were any guidelines or policies about a Bradley University employee having a second job of which they would need to be aware. (Doc. 13-2 at 18-19).

         Less than ten minutes after Ms. Bury emailed her response, Plaintiff sent another heated email to Ms. Bury and Mr. Scuffham. (Doc. 13-2 at 18). It stated:

“No, I didn't mean to include Shayne [in his previous email], but I don't care if he gets upset about it. All the shit he pulled before upset me, so he can just get over it. He can sue me if he wants to and hire 8 lawyers and spend $500, 000 if that's what he wants to do. I will fight him without a lawyer and I will win. All the crap I have been through the past years has helped me in that regard. Shayne's threats of legal action don't intimidate me, nor do Rick's Marine like psychological tactics. Yes, we are trying to repair the relations with Shayne. He and Rick have a part in that too. How they handled this was uncalled for, I apologize to nobody, and think the way I handled it was necessary to establish a precedence for later. Especially with Rick. Rick is very insecure right now and is going to be flexing extra hard to try and make himself feel important and needed. I didn't need him the entire 3 months he was gone. If he wants to act like he does to others that is fine, but I will not put up with it.”

(Doc. 13-2 at 18).

         After receiving both of Plaintiff's emails and Ms. Bury's email, Mr. Scuffham replied to Plaintiff and Ms. Bury. Mr. Scuffham's email stated that:

“I am only focusing on your actions, not Rick or Shayne's. Don't let Shayne or Rick push your buttons. Come talk to me. Tell Rick you need to check in with me, if you want. You always talk about how you prefer logic over emotions, but you always get emotional in these situations. You need to control your emotions and reactions and be calm and professional. It's not professional to yell, threaten, or slam the phone. Be calm. Set a good example. Speak with your actions, not your words. Nobody wants to work with someone who's angry and unpredictable. . . . I do not want to write you up. I want to have a group that is happy and works well together. But, if this behavior continues, I will have no choice, but to write you up.”

(Doc. 13-2 at 18) (emphasis added).

         On April 18th, Plaintiff emailed Nena Peplow, the Director of HR, to ask her whether there was an official policy that forbade a full-time Bradley University from having another part-time job. (Doc. 13-1 at 40-41). He wrote:

“I made a statement to Sandy [Bury], Dave [Scuffham], Rick [Sanders], and Shayne [Ghere] that I was not going to tolerate any ‘grief' about my second job until I see an official policy, etc. that full time BU employees are not allowed to have a second job. Does such policy exist?
Sandy also commented about implementing an on call rotation. It's funny there has never been an official on call rotation ever in our department. Now all [of] the sudden, I get a second job and she talks about having one. At one time, I said we needed one and nothing ever happened back then. I just find it funny that me having a second job would be the trigger for having one now?
I just wanted to document these things which is why I am emailing the email. In case there are problems later, I may refer to this Email and bring it forward that others in our department have had part-time jobs too and its never been an issue.”

(Doc. 13-1 at 40-41).

         Ms. Peplow responded and informed Plaintiff that there was no official policy. (Doc. 13-1 at 40). Ms. Peplow also informed Plaintiff that the part-time job could not interfere with his assigned job duties. (Doc. 13-1 at 40).

         Plaintiff responded to Ms. Peplow's email. He wrote:

“Thank you for the reply. Nothing further has been said to me about my second job, but I'm sure it'll come up again. . . . I told you after my incident with Chuck that I am not screwing around with these people anymore. I will be the first to call the good when I see it and report when things are going well such as I did to you and Dr. Glassman on the April 1 in our meeting. But I will also act swiftly on any problems that come my way. If I continue to get grief about my second job from Rick [Sanders], Sandy [Bury], Shayne [Ghere], or anyone, it's going to be considered harassment and we will be talking to you and the Provost again. Sandy [Bury] said she was going to check with your office on if there is any policy about having a second job. Please advise her that there is not and that she needs to leave me alone about it.”

(Doc. 13-1 at 40). The events of April 17th, and the subsequent emails, are the primary source of Plaintiff's Complaint. Additionally, the April 17th and 18th emails Plaintiff sent about his second job are the basis of his first retaliation claim. Plaintiff alleges that he was retaliated against because of them and that after them Ms. Bury began “building a case” against him. (Doc. 1 at 9).

         B. Subsequent Warnings about Plaintiff's Conduct

         After the April 17th incident, Plaintiff was involved in a series of events where he was warned about inappropriate or unprofessional behavior. Some of these were directed expressly at him, while one was directed at his entire department. These warnings were included as support when Plaintiff received his first disciplinary warning. (Doc. 13-1 at 42). These warnings include the following events.

         On April 28th, 2015, Ms. Bury emailed the IRT staff, including Plaintiff, and explained that she had received complaints of email communications between IRT members that were less than cordial. She reminded them that they needed to “strive to be respectful and professional in our communications with each other at all times.” (Doc. 13-1 at 45).

         On May 2nd, 2015, Plaintiff emailed Ms. Bury and Mr. Scuffham and told them that they should:

“consider[] telling people that they also need to start being respectful over the phone too. I'm going to start hanging up immediately on IRT people who get snotty with me, rather than get into further confrontations like I did the other day. . . . A lot of people get this really crappy attitude when we tell them things they don't want to hear, and ask them if they checked things they were too lazy to check before they call.”

(Doc. 13-1 at 47-48). On May 4th, 2015, Ms. Bury responded to Plaintiff's email and told him that hanging up on people was inappropriate and that he was expected to “be courteous and respectful on the phone, in person, and in email communications.” (Doc. 13-1 at 47-48).

         On June 2nd, 2015, Plaintiff emailed Mr. Scuffham to complain about a work problem that had occurred over the weekend and a work meeting that happened the previous day. Plaintiff wrote:

“So why does troubleshooting rule? Because rather than just bitch ‘I can't get on the network' like was done in yesterday's Monday morning bitch fest, which I'm about ready to quit going to after yesterday. . . . I don't think there is anyone in IRT who doesn't know that Mac addresses talk, bitching walks. . . .”

(Doc. 13-1 at 52-53). Mr. Scuffham responded that Plaintiff “need[ed] to tone down the attitude” because some people were not as technologically advanced as he is. (Doc. 13-1 at 52). Plaintiff responded that what he was asking for was not very difficult. (Doc. 13-1 at 52). Plaintiff then digressed and threatened to walk out of a meeting if he was interrupted in a meeting again. (Doc. 13-1 at 52). Mr. Scuffham responded that he needed to be calm and not let his emotions get the best of him. (Doc. 13-1 at 52). Plaintiff continued to complain because he felt that he was held to a double standard. (Doc. 13-1 at 52). Mr. Scuffham informed him that the standards were the same for everyone: he was expected to do his job, help others out, and be professional. (Doc. 13-1 at 51). Additionally, Mr. Scuffham warned that Plaintiff was wasting time by sending these argumentative emails. (Doc. 13-1 at 51). Plaintiff sent another email complaining. (Doc. 13-1 at 51). Mr. Scuffham responded with the following warning:

“But you didn't listen at the meeting, you wanted to argue and get out of doing your job. All of our jobs are to help people get their jobs done by keeping things running. And you are still arguing and wasting my time. Next time I expect you, like everyone is expected to, to listen when someone says there is a problem, instead of arguing. . . . If there is any of this extra arguing, etc., I will have no choice but to write you up.”

(Doc. 13-1 at 51) (emphasis added).

         On June 11th, 2015, Ms. Bury emailed Plaintiff to remove signs from his cubical. (Doc. 13-1 at 50). The first sign depicted a pictograph of the expression “No Bullshit” with a circle and line through the shape of a bull with a large amount of feces below its tail. (Doc. 13-1 at 49). Ms. Bury informed him that had to be removed immediately because it was “clearly inappropriate and unprofessional.” (Doc. 13-1 at 50). She also advised him that the second sign should also be removed. (Doc. 13-1 at 50). The second sign said “Look above you… ↑ Relax… See.. The sky is still there… Everything will be okay ☺.” (Doc. 13-1 at 49). Ms. Bury informed Plaintiff that postings needed to be approved by the University. (Doc. 13-1 at 50).

         Then, on July 15th, 2016, Plaintiff sent an email to his coworkers with the subject line of “Amazon and Walmart.com”. (Doc. 13-1 at 54). Plaintiff wrote:

“What?? I thought you network people had control of the entire internet and could fix any issue anywhere in world in the snap of a finger so long as I complained loud enough, told you how important I am, and made a big enough fuss? So what, you saying you can't?? It's an emergency I have to order my winter boots on Amazon TODAY!! Curse you!!!”

Id. These activities, as well as the April 17th emails, culminated in Plaintiff being formally disciplined on July 15th, 2015.

         C. First Written Disciplinary Warning and Meeting

         On July 15th, 2015, between 2:30 and 5:30PM, Plaintiff was called into a meeting with Mr. Scuffham and Ms. Bury. (Doc. 1 at 9). At that time, Plaintiff was informed that he was receiving a written disciplinary warning because of his behavior. (Doc. 1 at 9-10). Included with this meeting was a formal written warning. The written disciplinary warning said:

“A written warning is being issued to you today due to your ongoing pattern of contentious, unprofessional conduct and communications in spite of a verbal warning on September 30, 2014, and repeated advisement about ceasing these behaviors. Supporting documentation is attached.[1]
It is necessary for you to conduct yourself in a courteous, professional manner at all times in your communications with others, including in conversations, in meetings, and in electronic mail. This includes keeping your workspace free of unprofessional signage and objects.
This warning serves as official notice that any future incidents of similar behavior may result in disciplinary action up to and including termination of employment with Bradley University.”

(Doc. 13-1 at 42) (emphasis added).

         This written disciplinary warning was issued despite objections by Mr. Scuffham, Plaintiff's immediate supervisor. Mr. Scuffham issued a written statement that objected to disciplining him now because Mr. Scuffham believed Plaintiff's behavior had improved since June 2nd and he felt it sent the wrong message. (Doc. 13-1 at 57). Ms. Bury disagreed and issued the written ...


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