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Ortiz v. State

United States District Court, C.D. Illinois, Rock Island Division

March 28, 2017

STEVEN ORTIZ, Plaintiff,
v.
STATE OF ILLINOIS, DEPARTMENT OF EMPLOYMENT SECURITY, BY DIRECTOR JAY ROWELL, Defendant.

          ORDER

          SARA DARROW UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant State of Illinois Department of Employment Security's (“IDES”) motion for summary judgment, ECF No. 15. For the following reasons, the motion is GRANTED and Ortiz's case DISMISSED.

         BACKGROUND[1]

         Ortiz started working at a call center in Rock Island, Illinois in 2012. The call center was run by IDES to answer questions about unemployment insurance benefits provided by the State of Illinois. Ortiz had non-Hodgkin's lymphoma, a form of cancer, and was receiving chemotherapy every other month. Side effects of the chemotherapy included inability to concentrate, night sweats, nausea, lethargy, intense fatigue, and chills.

         When Ortiz originally applied for the job at the IDES call center, he was already employed by the Illinois Department of Human Services, a separate agency. On July 10, 2012, the call center interviewed him, along with eleven other candidates, for the position of Employment Security Program Representative. Representatives answer questions over the phone about unemployment insurance. The candidates were interviewed by IDES employees Rebecca Golden and Susan Colloton. Of the candidates, Ortiz scored third-highest on an application test. He was offered a position.

         Ortiz accepted and began working at the call center on August 16, 2012. Around this time, he took an employment intake survey stating that he had no disabilities. Ortiz had accrued benefit time, vacation, and sick time while working at the Illinois Department of Human Services, and this time transferred with him to his new job. He also had access to Veteran's Leave, which permitted him to take time off to go to a Veteran's Hospital. He requested leave so that he could go to oncology appointments on August 20, October 22, and December 17, 2012. These requests were all approved by Golden, his supervisor. He told her that he was asking for leave to go to chemotherapy appointments, and asked her if he should submit proof of the appointments, to which she replied that he should.

         Because Ortiz and the other new employees had been hired from an “open competitive eligible list, ” IDES regarded them all as being on probation for the first six months of their employment. 80 Ill. Admin. Code § 302.300(a). All the probationary employees were evaluated in writing at the end of the third month of the probationary period, and again fifteen days before the end of the probationary period, pursuant to law. Id. § 302.270(b). Golden, who was responsible for evaluating all of the call center employees, recommended whether to keep probationary employees on after the end of the six-month period, although she did not have final authority to discharge them.

         Golden's three-month evaluation of Ortiz indicates that he exceeded “objectives” for businesslike and professional conduct, and met all of them with respect to providing service, attending and completing training, working with his supervisor and coworkers, and being logged into the call center's phone relay system for seven and a half hours a day and answering 65-70 calls per day. First Ortiz Eval. 2, Mot. Summ. J. Ex. 1-E, ECF No. 16-1. It also indicates that he met expectations with respect to job knowledge, productivity, quality, initiative, use of time, planning, and follow-up, and that he exceeded them with respect to human relations. Id. Ortiz was also invited to evaluate himself on the same metrics in this second section. He indicated that he met expectations with respect to everything but job knowledge, where he said he needed improvement. The evaluation contained a narrative section written by Golden, describing Ortiz's training so far, and saying that initially, he had lacked confidence while speaking on the phone, but had improved in this area, and had good communication skills. Ortiz was invited to write a response, in which he stated that the assessment of him by Golden was accurate, that he had “a lot to learn, ” and that he appreciated the training and patience he'd received from the call center staff. Id. Golden states that at this time, she “thought he had some promise and wanted to give him more time to learn how to do the job.” Golden Aff. ¶ 11, Mot. Summ. J. Ex. 1, ECF No. 16-1.

         In November 2012, Ortiz asked Golden for more training, saying that he needed it because of his health, and his fatigue, and because there was so much to learn. Ortiz Dep. 74:10-12. Golden agreed to provide such training. From then on, Ortiz worked one on one with a more senior employee, Mike Timler. Id. 74:17-21. However, Golden told Ortiz on January 14, 2013 that she “could not recommend him to pass probation.” Golden Aff. ¶ 12. At some point then or shortly thereafter, his employment was terminated.

         Golden's second and final written evaluation for Ortiz indicates that he now no longer “met objectives” with respect to businesslike and professional conduct, providing service, working with his supervisor and coworkers, and being logged in and answering enough calls per day. Second Ortiz Eval. 2, Mot. Summ. J. Ex. 1-F, ECF No. 16-1. He continued to “meet objectives” only with respect to attending training. Id. He now did not meet expectations with respect to any category, in Golden's estimation; in his own, he again met expectations in every category except job knowledge. Id. In the narrative section, Golden wrote that the call center work was based on “the understanding of the claims process, IBIS functions and the ability to give the claimants the correct information, ” and that Ortiz's performance was unacceptable because “he has failed to grasp the basic functions of an employee of comparable training and time on the job. After considerable training, his performance does not exhibit the knowledge of department guidelines and procedures necessary to adequately perform the job.” Id. at 3. In response, Ortiz asked his supervisors to keep in mind that he was receiving chemotherapy, and that during the weeks of infusion, he was “extremely ill and lethargic.” Id. at 4.

         Ortiz's probationary period would have ended on February 15, 2013, but Golden avers that she did not think he would be able to improve enough in this time period. Golden Aff. ¶ 14. She avers that she recommended he not pass the probationary period because of his inadequate job performance, not because of his non-Hodgkins lymphoma. Id. ¶ 15. She stated that she formed her conclusions on the basis of her personal observations, and speaking with Timler. Id. ¶ 17. Golden recommended that another of the employees who had been hired on probation at the same time as Ortiz, Allison Bradley, pass probation. Bradley had indicated that she had a disability (IDES does not say what). Another employee who had been hired on probation at the same time as Ortiz, Tracy Hopkins, was also not permitted to pass probation.

         Ortiz filed suit in Illinois circuit court on January 22, 2015, alleging discrimination under the ADA, Compl. 2-4, Not. Removal Ex.3, ECF No. 1-3, and sex discrimination under Title VII, 42 U.S.C. §§ 2000e-2000e-17, Compl. 4-5. IDES removed the case to this Court on February 27, 2015, pursuant to 28 U.S.C. §§ 1441, 1446, and the Court's federal-question jurisdiction. Not. Removal, ECF No. 1. After a motion to dismiss, ECF No. 2, was granted, Mar. 30, 2016 Order, ECF No. 14, removing the Title VII claim, IDES moved for summary judgment on May 3, 2016. Ortiz never responded to this motion, which is ripe for ruling.

         DISCUSSION

         I. Legal Standard on a Motion ...


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