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Martin v. F.E. Moran, Inc.

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

April 10, 2017

Kenneth Martin, et al., Plaintiff,
v.
F.E. Moran, Inc., Fire Protection of Northern Illinois, Defendant.

          MEMORANDUM OPINION AND ORDER

          Virginia M. Kendall United States District Court Judge.

         Plaintiff Kenneth Martin, Aaron Truesdell, and Johnny Tejada, filed this action against F.E. Moran Inc., Fire Protection of Northern Illinois (FPN) alleging discriminatory employment practices. Martin, Truesdell and Tejada bring two counts each, one under Title VII and one under 42 U.S.C. § 1981, based on their layoffs as well as FPN's failure to transfer or rehire them. Tejada brings two additional counts, under the same statutes, for wage discrimination.[1] FPN moves for summary judgment on all counts with respect to all three Plaintiffs. For the foregoing reasons, FPN's motions are denied. (Dkt. 193, 197, 201.)

         FACTS

         The following facts are undisputed unless otherwise noted. FPN is an Illinois corporation headquartered in Northbrook, Illinois, that installs, inspects, tests, and maintains fire protection sprinkler systems in commercial and residential facilities. (Dkt. No. 21 at ¶¶ 8, 9.) In the sprinkler fitter industry, employees are typically laid off when a project ends; then the sprinkler fitter may be transferred or rehired to another project. (Def.'s SMF at ¶ 28.) FPN does not have a specific hiring policy; sprinkler fitters usually obtain employment at FPN by calling a superintendent and/or the superintendent calling the sprinkler fitter. (Def.'s SMF at ¶¶ 28, 29.) FPN generally fills open positions on new projects with its current, regular workforce, if possible. (Def.'s SMF at ¶ 30.) Plaintiffs Aaron Truesdell, Kenneth Martin, and Johnny Tejada, are African-American and worked as journeymen sprinkler fitters, meaning they worked under a foreman who supervised them, or as foremen for FPN. Each of the Plaintiffs was laid off in 2010, and was never transferred or rehired to a new project. Plaintiffs assert that FPN's actions were motivated by racial discrimination. (Dkt. No. 21 at ¶ 11.) Throughout the Plaintiffs' employment, FPN was subject to the terms of the collective-bargaining agreement (CBA) that existed between the National Fire Sprinkler Association and Sprinkler Fitters and Apprentice Local Union No. 281 Chicago, Illinois. (Def.'s SMF at ¶ 26.)

         I. Administrative Change

         Former FPN Superintendent, Edward Sullivan, was responsible for hiring Plaintiffs Martin and Truesdell. All three Plaintiffs had steady employment with FPN while Sullivan was in charge of hiring, layoffs, rehiring and transfer decisions at FPN. In February 2009, Scott Acred replaced Sullivan as Superintendent, and was joined in early 2012 by John Waters and Robert Barcik to form the “field management team.” (Pl.s' SMF at ¶ 10.) Plaintiffs' expert, Dr. William Bridges, evaluated the effect of this administrative change, and found black fitters worked fewer hours and earned less in the period after Sullivan was replaced by Acred and eventually the field management team. (Pl.s' SMF at ¶ 11.)

         Dr. Bridges' data analysis tracks the change in jobs after this administrative shift. His analysis shows that after the end of a big job (1, 000 or more hours), white fitters were picked up for other jobs 90% of the time in 2008 and 2009 and 100% of the time in 2010 and 2011, while in 2008, black fitters had some prospects for continued employment, but after that (2009-2011), they had no instances of continued employment. (Pl.s' SMF at ¶ 25.) FPN disputes this evidence and argues Dr. Bridges' statistical analysis is deficient through its rebuttal expert, Dr. Guryan. In addition to the statistical deficiencies in Dr. Bridges methods, FPN points to the economic downturn in 2010 and explains that many sprinkler fitters were out of work during the period analyzed by Dr. Bridges. (Def.'s SMF at ¶ 60.) According to FPN's John Waters, another effect of the economic downtown was that FPN was able to selectively employ fitters based on industry reputation, skills, and productivity.[2] (Def.'s SMF at ¶ 60.)

         Waters was not a fan of Truesdell and Martin, and always suggested reassignment of white fitters over them. (Pl.s' SMF at ¶ 40.) Additionally, Waters testified that when making hiring and layoff decisions, he ranked fitters by “ask[ing] around who was the best people[.]” (Waters Dep. at 147:3-24.) FPN maintained field rating charts, although it is unclear whether anyone on the field management team relied on them. For example, Truesdell had a B rating over the three years FPN tracked the sprinkler fitters. (Pl.s' Ex. 106, 107, 108.) Daniel Hughes, a white fitter, had a lower rating than Truesdell and still was working for FPN as of February 2015. (Pl.s' SMF at ¶ 57.) William Massey, Jr., another white fitter, had a lower rating than Truesdell, and was employed through February 2015. (Id.) Randy Iverson, who was also white, had a particularly poor work history with FPN, yet continued to work through 2014. (Pl.s' SMF at ¶ 22.)

         Around the time that Acred took over as Superintendent, he and others were circulating emails which Plaintiffs' experts relied on in evaluating the cultural attitudes toward race in the new administration. On August 22, 2009, Scott Acred forwarded an e-mail to his field management team (Robert Barcik and John Waters) that stated: “I don't think being a minority makes you a victim of anything except numbers. The only things I can think of that are truly discriminatory are thinks [sic] like the United Negro College Fund, Jet Magazine, Black Entertainment Television, and Miss Black America… . I know a lot of black people, and not a single one of them was born in Africa; so how can they be ‘African-Americans'?” (Pl.s' Exhibit 121.) The bottom of the email included the statement: “I was asked to send this on if I agree or delete if I don't. … If you agree, pass this on, if not delete.” Acred forwarded another email on November 13, 2009 to Waters and Barcik that included the statement, “Governments, businesses and colleges have engaged in discrimination against white folks -- with affirmative action, contract set-asides and quotas -- to advance black applicants over white applicants.” (Pl.s' Exhibit 42.) On February 29, 2012, John Hebert, then Vice President of FPN, e-mailed Ken Votava, a Sales Representative with FPN, “this eeo and mbe crap is a killer.” (Pl.s' Ex. 112) (ostensibly referring to minority job participation requirements).

         II. Comparators

         Plaintiffs identify thirteen comparators, all foremen, who were not laid off when the Plaintiffs were terminated in 2009 or 2010. Some of these fitters had the same, or lower, grade ratings than Martin and Truesdell. Two were described by former Superintendent Procter as “terrible, ” and by Barcik as “inexperienced.” (Pl.s' SMF at ¶¶ 48, 54.) At least three were kicked off jobs for poor performance, and one of those three was nearly fired for having thousands of dollars of tools stolen from his service van parked outside of a bar. (Pl.s' SMF at ¶¶ 47, 56.)

         III. Plaintiffs

         While the Plaintiffs share the above circumstances, they also provide separate and individual facts for their claims.

         A. Kenneth Martin

         Kenneth Martin became a member of Local Union No. 281 in the late 1990's. (Def.'s SMF at ¶ 20.) He began working for FPN in 2005. He brings claims against FPN based on his 2009 and 2010 layoffs and the subsequent failure to transfer or rehire him to new projects.

         Sullivan, who was working as a foreman at that time, recommended Martin to FPN based on Martin's hard-working reputation. (Pl.s' SMF at ¶¶3-4, 6.) In 2005, when Sullivan was the Superintendent, he rehired Martin. Sullivan promoted Martin to foreman in 2006. (Pl.s' SMF at ¶¶3-4, 6-8.) After Acred became the superintendent in September 2009, Martin was laid off from an FPN project. (Pl.s' SMF at ¶ 79.) In June 2010, he was rehired by FPN when FPN took over the Boone Project, which Martin was already working on for Universal Fire Protection (Universal), one of FPN's competitors. On the Boone Project, there had been leaks in the piping. Martin explains that these were due to the “terrible” threading on the piping from Universal, whose financial difficulties had impacted the quality of their supplies being used on the project. (Pl.s' SMF at ¶¶ 27, 29.) Nevertheless, FPN blamed Martin for the leaks, (Def.'s SMF at ¶¶ 47- 56), despite Acred admitting that leaks sometimes happen on jobs and do not result in adverse employment actions against the fitters on those jobs. In fact, Acred did not hold Fitter Dan Hughes and Erik Massey responsible for floods which occurred on their watch, and Hughes and Massey continued to work for FPN after Martin was laid off. (Pl.s' SMF at ¶¶ 37, 44.) Martin was never reassigned to another job with FPN, but he continued to inquire, specifically making phone calls to Acred about whether there was available work. (Pl.s' SMF at ¶ 33.)

         Martin filed a Charge of Discrimination with the EEOC on July 11, 2011. He received a notice of dismissal and right to sue dated July 20, 2011. (Def.'s SMF at ¶ 12.) He received a notice of the EEOC's intent to reconsider its dismissal dated September 19, 2011, stating that the EEOC was “rescinding the Dismissal and Notice of Rights… [and] will continue the investigation[, ]” (Def.'s SMF at ¶ 13, Pl.s' SMF at ¶¶ 76, 77.) The second right-to-sue was letter mailed on February 6, 2013, and told Martin that his Title VII claims “must be filed in a federal or state court WITHIN 90 DAYS of your receipt of this notice, or your right to sue based on this charge will be lost.” (Id.) (emphasis in original).[3] (Def.'s SMF at ¶¶ 12, 16-17.)

         B. Aaron Truesdell

         Aaron Truesdell became a member of Local Union No. 281 in 1989 and continued his membership through his retirement on December 31, 2014. (Def.'s SMF at ¶¶ 1, 20.) Truesdell was first hired by FPN on May 15, 2006. (Def.'s SMF at ¶ 31.) He brings claims against PFN for his 2009 and 2010 layoffs and their subsequent failure to transfer or rehire him after the 2010 layoffs.

         Former FPN Superintendent, Edward Sullivan, hired Truesdell in 2005 based on Truesdell's good reputation in the field. (Pl.s' SMF at ¶¶2, 5-6.) While Sullivan made hiring, transfer, layoff, and rehiring decisions, Truesdell found steady work with FPN; in many of those jobs, Sullivan promoted Truesdell to foreman. (Pl.s' SMF at ¶¶ 2-6.) In July 2009, Truesdell took over the Chase Bank job as a foreman, replacing non-African-American, Randall (“Randy”) Iverson. (Def.'s SMF at ¶¶ 34, 35.) When the field management team took over, the team made the August 14, 2009, decision to layoff Truesdell from the Chase Bank job. (Def.'s SMF at ¶ 34; Pl.s' SMF at ¶ 54.) Iverson had an especially poor track record. Metcalfe testified that Iverson was constantly late, (Metcalfe Dep. at 307:14-308:2), and Acred testified about some of Iverson's more dramatic mistakes, including pulling the fire alarm in a hospital while filling the sprinkler system. (Acred Dep. at 168:4-12.) Nevertheless, although laid off from the Chase Bank job, Iverson continued to work steadily into 2014 for FPN on other jobs. (Pl.s' SMF ¶ 22.)

         After the Chase Bank job, Truesdell found work with FPN competitor, Universal. (Def.'s SMF at ¶ 41.) While working on that job, Truesdell turned down an offer from FPN Project Manager Barcik to work on an FPN project, but asked if he could circle back with Barcik when the project was over; he did so, and Barcik hired Truesdell to work for FPN on the Lee Pasture Job. (Def.'s SMF at ¶ 41; Barcik Dep. At 133:14-18; 134:1-3; 134:12-21.) Truesdell's final job for FPN was as the foreman on the Wal-Mart project. He was laid off on September 29, 2010. (Def.'s SMF at ¶ 50.) Truesdell was the last sprinkler fitter on the job and was laid off, according to FPN, because the project was complete. (Def.'s SMF at ¶ 50.) Following the completion of the Wal-Mart project, Acred met with a group of individuals to create the “After Action Report, ” documenting the failures on the Wal-Mart project. (Def.'s SMF at ¶ 52.) Acred noted in this report that the “[w]rong foreman [was] running [the] project.” (Id.) At the same time, Acred pointed out problems with the Wal-Mart project that were beyond Truesdell's control, for example, problems due to sales representative Scott Katcher's poor management of the project. (Herbert Dep. at 61:21-63:18) (“it was just not a very well-managed project from day one.”); (Pl.s' SMF ¶¶ 40-41.) Truesdell was never rehired by FPN. Plaintiffs cite nine projects after the 2010 layoff that FPN had work available for fitters. Plaintiffs do not dispute that Truesdell did not reach out to FPN for employment after his 2010 layoff. (Pl.s' SMF at ¶ 44.) FPN, however, never posted fitter job openings or informed Local 281 of upcoming jobs. (Pl.s' SMF at ¶ 13.) Nevertheless, FPN continued to tap into its work pool for fitters that had same or lower ratings than Truesdell. (Pl.s' SMF at ¶ 13.) Neither party presents evidence as to whether or not these fitters specifically contacted FPN for employment or whether FPN reached out to them.

         On July 6, 2011, Truesdell filed an Intake Questionnaire and a charge with the EEOC. (Def.'s SMF at ¶ 3.) In his charge, he alleged the September 2010 layoff was unlawful discrimination based on his race but he did not explicitly mention a failure to rehire. (Def.'s SMF at ¶¶ 4, 5.) The EEOC issued a notice of right to sue letter on August 12, 2011 which Truesdell received. (Def.'s SMF at ¶ 8.) On September 19, 2011, Truesdell received a letter from the EEOC rescinding the dismissal of his charge and stating the EEOC would continue its investigation. Truesdell did not know why the EEOC rescinded the right to sue and heard nothing further from the EEOC until his counsel, Judson Miner, contacted the EEOC on February 4, 2013, and requested the EEOC issue a notice of right-to-sue on behalf of Truesdell and co-plaintiff Martin. (Truesdell Dep. 176:12-177:19, Def.'s SMF at ¶ 14.) The February 4, 2013 notice states: “Your lawsuit under Title VII, the ADA or GINA must be filed in a federal or state court WITHIN 90 DAYS of your receipt of this notice, or your right to sue based on this charge will be lost.” (Id.) (emphasis in original).[4]

         C. Johnny Tejada

         Plaintiff Johnny Tejada is of Panamanian ancestry and also identifies as African-American. (Def.'s SMF at ¶ 1; Tejada Dep. Tr., at 10:9-11:2; 11:22-24.). Tejada brings claims against FPN for his 2010 layoff, FPN's subsequent failure to transfer or rehire him after that layoff, and a claim for wage discrimination. On December 13, 2001, Tejada became a member of the Sprinkler Fitters and Apprentice Local Union No. 281 (“Union”) and his membership was active through January 31, 2013. (Def.'s SMF at ¶ 25.)

         Tejada's first job for FPN was the Powell School project. The George Sollitt Construction Company (Sollitt) contacted John Hebert, senior vice president of FPN, to inquire as to whether FPN could assist in completing a project on the Adam Clayton Powell, Jr. Elementary School, located at 7511 South Shore Drive, Chicago, Illinois 60649 (Powell project), as Universal -Sollitt's then-current fire protection subcontractor-was unable to complete the job due to financial hardships. (Def.'s SMF at ¶ 32.) Hebert agreed that FPN would take over the job. (Id. at ¶ 33.)

         FPN specifically ensured that the formal agreement with Sollitt would not require any minority job participation. (See Def.'s SMF at ¶ 33) (The subcontract stated: “[t]his agreement stipulates that F.E. Moran Fire Protection will not supply any of the aforementioned minority participation on this project and therefore will not be held liable to potential penalties associated with shortfalls.”). The rider, “Rider II, ” in Sollitt's form subcontracts normally requires minority job participation. (See Rahn Dep. at 72:23-73:4) (“Q: “that was your preference to have Rider II in subcontracts, correct? A: As a general rule, yes. Q: Okay. But F.E. Moran did not want Rider II in the subcontract. A: That's apparent yes.”).

         For purposes of continuity, and based on communications between FPN and Sollitt, FPN decided to hire Tejada to work on the Powell project on June 28, 2010. (Def.'s SMF at ¶ 40.) The parties dispute whether or not Tejada was initially hired as the foreman. Tejada believed that he was the foreman because he had been a foreman on other projects for Universal, [5] and on the Powell Project in particular. (Tejada Dep. at 118:16-18; 120:2-3; 120:10-12; 123:1-14.) He also believed that he was the foreman on the project because, when FPN took over the job, he was the only fitter, and under the collective bargaining agreement when there is only one fitter, that fitter is considered the foreman. (See Def.'s SMF at ¶ 55, Ex. A, Dep. Ex. 10); (see also Tejada Dep. at 123:1-14.) While Tejada did not list his job as foreman on his EEOC intake questionnaire and instead listed his job as journeyman, (Tejada Dep., Ex. 15 at FPN 543-544), he nevertheless stated that he believed he was discriminated against because he never received a foreman's pay. (Tejada Dep., Ex. 15, FPN 543-544.)

         One week[6] after FPN took over the Powell Project, FPN assigned Eric Woolwine as the foreman of the project. Woolwine had a stellar reputation according to the testimony of FPN's employees. (See, e.g. Def.'s SMF at ¶ 44) (He was known in the industry as “Eric ‘Awesome' for a reason.”) Later, FPN determined that, based on the Powell project, Woolwine was more productive than Tejada. (Barcik Dep. at 119:1-3) (“Eric was cutting 23-plus [sprinkler] heads in a day and Mr. Tejada was probably at 15”; but also testifying that 15 is “a good number[.]”).

         In the midst of the Powell project, on September 17, 2010, FPN laid off Tejada. (Def.'s SMF at ¶ 52.) Woolwine remained on the Powell School job following Tejada's layoff, and at the end of the project Woolwine was transferred to another project. (¶ 54.) Although he was not transferred or rehired, Tejada believed that there was work available for him at the time of his layoff. (Tejada Dep. 17:23-18:2.)

         The parties dispute the extent of Tejada's efforts to seek employment after this layoff. (See Def.'s SMF at ¶¶ 62-63; Pl. Dep. Tr., at 217:14-17.) According to FPN, Tejada made no efforts to put his name on the Union's “out-of-work” list, and did nothing more than leave two general voice messages for an FPN superintendent. (Def.'s SMF ¶ 62.) FPN also points out that Tejada waited nearly a year after his layoff before contacting his supervisor, Acred. But Tejada explained in his testimony that he waited until summer before contacting Acred because “our work is really seasonal driven. So when it starts getting warm again, works really pick up [sic]. And that's when I was really pounding the pavement as far as trying to find work again, [] and at that point I was desperate, and I started calling F.E. Moran again. And it was more than just that one time. I kept calling them because I never got any answer back whatsoever.” (Tejada Dep. 45:15-46:3.) Acred testified that he could not recall whether or not Tejada called him to express an interest in rehire, and that he did not keep a log of his phone calls or messages. (Acred Dep. 216:10-217:5.) There is clearly a dispute as to how far Tejada went to seek further employment from FPN.

         On June 30, 2011, Tejada filed an intake questionnaire and a Charge of Discrimination with the EEOC, bringing allegations of race and sex discrimination. (Def.'s SMF at ¶¶ 3, 6.) In the intake questionnaire, Tejada lists Eric Woolwine (mistakenly called “Wrightwood”) as an individual that was treated better than him and states that while Tejada was “let go, ” Woolwine ultimately “went on to work other projects” with FPN. (Pl.s' SMF at ¶45.) Tejada ultimately received the operative right-to-sue notice on August 12, 2013, and filed this complaint on November 12, 2013.[7] Tejada believed that he was discriminated against ...


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