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Bowen v. Board of Election Commissioners of City of Chicago

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

August 4, 2017

SHERI BOWEN, Plaintiff,
v.
BOARD OF ELECTION COMMISSIONERS OF THE CITY OF CHICAGO, Defendant.

          MEMORANDUM OPINION AND ORDER

          GARY FEINERMAN UNITED STATES DISTRICT JUDGE

         Sheri Bowen sued her former employer, the Board of Election Commissioners of Chicago, in state court, alleging that it discriminated against her on the basis of her race and sex in violation of Title VII, 42 U.S.C. § 2000e et seq., that it discharged her in retaliation for not performing illegal activities, and that it violated the Illinois Whistleblower Act (“IWA”), 740 ILCS 174/20. Doc. 1-1. The Board removed the suit to this court. Doc. 1. The court dismissed the retaliation and IWA claims, leaving only the Title VII claims, Doc. 18, on which the Board now moves for summary judgment, Doc. 72. The motion is granted in part and denied in part.

         Background

         The following facts are stated as favorably to Bowen as permitted by the record and Local Rule 56.1. See Woods v. City of Berwyn, 803 F.3d 865, 867 (7th Cir. 2015). In considering the Board's motion, the court must assume the truth of those facts, but does not vouch for them. See Arroyo v. Volvo Grp. N. Am., 805 F.3d 278, 281 (7th Cir. 2015).

         Bowen is an African-American woman. Doc. 13 at 2-3 ¶ 5. She worked for the Board from 1990 until her termination in November 2014. Doc. 82 at 1 ¶ 2. From 2004 through her termination, Bowen was the Supervisor of Absentee Voting, a position responsible for reviewing absentee ballots for timeliness and overseeing and coordinating staff in conducting that review. Id. at 1, 3 ¶¶ 3, 7-8.

         The events giving rise to Bowen's firing took place during the general election of November 4, 2014. Id. at 5 ¶ 17. In the Board's view, Bowen did not properly screen untimely absentee ballots that were dated November 5, 2014. Id. at 6 ¶ 18. While conceding that she committed a “major mistake, ” Bowen contends that she merely failed to verbally remind staff to check for untimely ballots. Id. at 4-6 ¶¶ 13, 17, 19. The mistake involved nearly one hundred absentee ballots. Id. at 7 ¶ 22; Doc. 82-2 at 35.

         The Board terminated Bowen on November 11, 2014. Doc. 82 at 9 ¶ 26. The Board contends that the termination was based on Bowen's failure to meet its expectations; Bowen counters that her termination was based on her race and sex. Ibid. Bowen acknowledges that some discipline, such as a suspension, would have been warranted, but submits that termination was too severe. Id. at 10 ¶ 29.

         Bowen was replaced by Steven Cieslicki, a white male. Id. at 13 ¶ 37. Cieslicki's salary in 2015 was $61, 488, almost $10, 000 less than Bowen's $71, 364 salary at the time she was fired. Id. at 3, 13 ¶¶ 9, 37. Cieslicki later received a promotion and has been earning a $73, 092 salary since 2016. Id. at 17 ¶ 21.

         Bowen asserts that she experienced “gross insubordination” from one of her staff members, Alfonso Belt, who threatened physical violence. Id. at 14 ¶ 5. The Board purports to dispute this fact, but its response does not contradict the events Bowen describes; instead, it states that efforts were made to ameliorate Bowen's relationship with Belt and that Bowen was able to maintain a productive relationship with him. Doc. 87 at ¶ 5. This adds context, but does not challenge the occurrence of Belt's behavior, so this fact is admitted.

         Bowen also asserts that during an altercation between two other employees, one threatened to use a letter opener as a weapon against the other, and that neither was terminated. Doc. 82 at 15 ¶ 8. The Board does not challenge these facts, except for disputing the use or threatened use of a letter opener as a weapon. Doc. 87 at ¶ 8. Upon reviewing the record, the court agrees with the Board; the testimony cited by Bowen supports only that there was a letter opener on the floor, not that an employee used or threatened to use it as a weapon. Doc. 82-3 at 9-10. The court thus accepts as true the existence of the altercation, but not the use or threatened use of a letter opener as a weapon.

         Bowen further asserts that “[t]here were numerous incidents of employee conduct that was worse than conduct alleged against Plaintiff, for which employees were not terminated.” Doc. 82 at 15 ¶ 10. In response, the Board states that it “disputes the facts in this paragraph, ” Doc. 87 at ¶ 10, but it does not support its denial with “specific references to the affidavits, parts of the record, and other supporting materials relied upon, ” as required by Local Rule 56.1(b)(3)(B). Normally, this would result in the court deeming admitted Bowen's statement. See N.D. Ill. L.R. 56.1(b)(3)(C) (“All material facts set forth in the statement required of the moving party will be deemed admitted unless controverted by the statement of the opposing party.”); Keeton v. Morningstar, Inc., 667 F.3d 877, 883-84 (7th Cir. 2012) (“[D]istrict courts are entitled to expect strict compliance with Local Rule 56.1.”). However, Bowen's statement that unnamed employees' misdeeds were “worse” than hers is conclusory, not factual, and thus not proper under Local Rule 56.1. See Greer v. Bd. of Educ. of Chi., 267 F.3d 723, 727 (7th Cir. 2001) (affirming the district court's rejection of a Local Rule 56.1 assertion because it consisted of “generalized self-serving legal conclusions, rather than particularized statements of fact”). Accordingly, the court accepts as true that other employees engaged in misconduct, but does not accept as true that the misconduct was worse than Bowen's.

         Bowen also asserts that the absentee ballot department had an assistant supervisor through 2009, but that the Board from 2009-2014 refused to fill the position. Doc. 82 at 17 ¶ 18. (Bowen's Local Rule 56.1(b)(3)(C) statement actually says “supervisor” instead of “assistant supervisor, ” ibid., but that must have been a typographical error.) Bowen supports this assertion with averments in her own declaration that “every department at the Board has supervisor and assistant supervisor positions” and that she requested an assistant but was told it was impossible for budgetary reasons. Doc. 82-1 at ¶¶ 4, 28. Bowen's declaration is based on personal knowledge; as a long-time Board employee, she was in a position to understand staffing policy. Accordingly, for summary judgment purposes, the court will credit Bowen's assertion that her position traditionally had an assistant, but that she did not have one from 2009-2014.

         Finally, Bowen avers that, “[b]etween 2009 and 2013, I was not given pay increases, while other supervisors and management employees received pay raises.” Doc. 82 at ¶ 19. In disputing that assertion, the Board says that “Plaintiff's income was significantly increased over the 24 years that she worked at the Board, including in 2013.” Doc. 87 at ¶ 19. The record does reflect that Bowen received a raise of approximately $2, 000 in 2013. Doc. 82-2 at 16. But that does not contradict Bowen's averment that between 2009 and 2013-that is, from 2009-2012- she did not receive ...


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