United States District Court, C.D. Illinois, Peoria Division
MICHAEL S. WHITLOW, Plaintiff,
BRADLEY UNIVERSITY, Defendant.
ORDER & OPINION
BILLY McDADE United States Senior District Judge.
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.
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).
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
April 17th Events
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.
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).
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
(Doc. 13-1 at 39).
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).
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).
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
(Doc. 13-2 at 18) (emphasis added).
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
(Doc. 13-1 at 40-41).
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).
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
Subsequent Warnings about Plaintiff's Conduct
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.
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).
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).
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).
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).
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
Id. These activities, as well as the April 17th
emails, culminated in Plaintiff being formally disciplined on
July 15th, 2015.
First Written Disciplinary Warning and Meeting
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
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
(Doc. 13-1 at 42) (emphasis added).
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 ...