United States District Court, N.D. Illinois, Eastern Division
SUSAN M. TOMAS, Plaintiff,
THE STATE OF ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY; JAMES JOHNSON; DIANN WARE; LIOUBOV VOITYNA; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES AFSCME, LOCAL 1006; PATRICIA OUSLEY; RUDELEY HERRON; and MARK FISHER, Defendants.
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN, UNITED STATES DISTRICT JUDGE.
filed a Sixth Amended Complaint , alleging
discrimination and retaliation based on national origin,
hostile work environment, intentional infliction of emotional
distress, First Amendment retaliation, and violations of the
Illinois Ethics Act. Plaintiff moves for summary judgment 
against all defendants requesting a default judgment for
discovery abuses. The State of Illinois defendants, Illinois
Department of Employment Security (“IDES”), James
Johnson, Diann Ware, and Lioubov Voityna, move for summary
judgment in their favor  on Counts I-VIII. The Union
defendants, AFSCME Local 1006, Patricia Ousley, Rudeley
Herron, and Mark Fisher, move for summary judgment in their
favor  on Counts X-XI. This Court heard oral arguments
on the motions on January 30, 2018. For the reasons stated
herein, the Court denies plaintiff's summary judgment and
grants summary judgment in favor of defendants.
following facts are undisputed. Plaintiff, Susan M. Tomas, is
Caucasian of Polish descent. (Dkt. 325 at ¶ 4). She
filed the instant lawsuit against her former employer, IDES,
a State of Illinois agency. (Dkt. 325 at ¶ 5; Dkt. 329
at ¶ 5). Tomas was employed by IDES from August 16,
2001, to November 29, 2007. (Dkt. 325 at ¶ 8; Dkt. 329
at ¶ 4). Throughout her employment with IDES, Tomas was
a member of the defendant labor union, American Federation of
State, County, and Municipal Employees
(“AFSCME”), Local 1006. (Dkt. 325 at ¶ 11).
Tomas voluntarily left IDES employment in November 2007 and
currently works for the Illinois Department of Human Services
as a Human Services Caseworker. (Id. at ¶ 24).
the relevant time frame, defendant James Johnson, African
American, was the Local Office Administrator for the IDES
Addison office where Tomas worked. (Dkt. 325 at ¶ 6;
Dkt. 339 at ¶ 1). Johnson was not Tomas' direct
supervisor, but he was her manager. (Dkt. 325 at ¶ 6;
Dkt. 339 at ¶ 1).
Diann Ware, African American, was a Field Office Supervisor
at the IDES Addison office where Tomas worked. (Dkt. 325 at
¶ 7; Dkt. 339 at ¶ 1). Tomas reported directly to
Ware when she began working at IDES. (Dkt. 325 at ¶ 7;
Dkt. 339 at ¶ 1). Sometime in 2004 or 2005 Ware
transferred out of the Addison office. (Dkt. 325 at ¶ 7;
Dkt. 339 at ¶ 1).
Lioubov Voityna, Caucasian of Ukrainian descent, began her
employment with IDES in 2001 as an employment security
program representative (“ESPR”) in the Addison
office. (Dkt. 325 at ¶ 8; Dkt. 339 at ¶ 3). Voityna
was promoted to employment security service representative
(“ESSR”) in approximately 2004. (Id.).
She was promoted to field office supervisor for the
adjudication unit in 2005. (Id.). As field office
supervisor part of Voityna's job duties included training
individuals who were being promoted from ESPR to ESSR,
including Tomas. (Id.). Voityna still works as a
supervisor for IDES, but in a different office.
Patricia Ousley, African American, has been employed by IDES
for forty years, and served as AFSCME Local 1006 President
from April 1, 2005, to December 18, 2013. (Dkt. 323 at
¶5; Dkt. 338 at ¶ 2). Defendant, Mark Fisher,
African American, never worked for IDES, but was a member of
AFSCME Local 1006 from 2004 to 2012. (Dkt. 323 at ¶6;
Dkt. 338 at ¶ 4). He was steward for AFSCME from the
fall of 2005 to the fall of 2008. (Id.). Defendant,
Rudeley Herron, African American, has been employed by IDES
since 2001 and was Chief Steward for the AFSCME Local 1006
for seven or eight years beginning in 2000 or 2001. (Dkt. 323
at ¶7; Dkt. 338 at ¶ 5). Herron held the position
of First Vice President and Chief Steward for Local 1006 from
2008 to 2014. (Id.).
Bargaining Agreement and Grievance Procedures
July 1, 2004, to June 30, 2008, there was a master collective
bargaining agreement (“CBA”) in effect between
the State of Illinois and the AFSCME Council 31, AFL-CIO, and
its affiliated locals, including Local 1006. (Dkt. 323 at
¶ 20). The CBA, Article II, gives management “the
exclusive right to manage its operations…
including… [t]he right to… evaluate, allocate
and assign employees; to discipline…, to make and
enforce reasonable rules of conduct….”
(Id. at ¶ 72). Article V, Section 2 of the CBA
provides a ten business day time limit for filing a grievance
after an occurrence. (Id. at ¶ 32).
contains a four-step grievance procedure: at Step 1 the
employee or the union must orally raise the grievance with
the employees' supervisor, who is outside the bargaining
unit. (Id. at ¶ 21). At Step 2, if the
grievance is not resolved at Step 1, it must be presented in
writing by the Union to the Intermediate Administrator or a
designee. (Id.). At Step 3, if the grievance is
still unresolved, then it must be presented by the Union to
the agency head or a designee. (Id.). For
departments outside of DCFS, Revenue, Human Services, and
Corrections, the Union is represented by the “3rd Level
Grievance Committee, ” comprised of Union staff and a
total of six bargaining unit members representing all other
Agencies, and each Agency is represented by the agency head
or a designee. (Id.). At Step 4, if still
unresolved, the Union may appeal the grievance to a
pre-arbitration meeting between Illinois Department of
Central Management Services staff and Union staff.
(Id.). It may then be moved to arbitration by the
AFSCME Local 1006 member wanted to file a grievance or have a
union representative at a meeting, the member would contact
either the on-site steward. (Id. at ¶ 25). If
there was not a steward on-site, then the member would
contact the Chief Steward. (Id.). As a steward for
AFSCME Local 1006, Fisher, had filed grievances at Step 1 and
moved them to Step 2. The Chief Steward, Herron, would then
make a decision to advance a grievance from Step 2 to Step 3.
(Id. at ¶ 26).
Level Grievance Committee is a committee of the AFSCME
Council 31, not a committee solely for AFSCME Local 1006.
(Id. at ¶ 22). The 3rd Level Grievance
Committee consisted of six elected positions. Ousley was a
member of the Committee from 2004, to 2015. (Id. at
¶ 23). In 2006, the Committee was made up of three white
members and one black member. (Id.). The Committee
also had one staff member, who was white. (Id.). The
Committee met once a month to for three to four days to
address 100 to 150 grievances. (Id.). When
considering Step 3 grievances the 3rd Level Committee would
have the grievance, the fact sheet, any other documentation
that the investigator, being the steward, would have gotten
together, and the resolution once complete. (Id. at
¶ 24). Most of the grievances did not move on from Step
3 to Step 4. (Id. at ¶ 23).
Employment at IDES
began her employment as an “intermittent”
(non-permanent) ESPR in the Addison office. (Dkt. 318 at
¶ 7; Dkt. 325 at ¶ 10). In July 2002, Tomas
received a permanent appointment, through a bidding process,
as an ESPR with Polish Option. (Dkt. 325 at ¶ 10). As an
ESPR, Tomas processed unemployment claims. (Id. at
¶ 12). From 2002 through August 2004, Tomas was meeting
expectations and her record was free of counselings,
reprimands, or any sort of discipline. (Dkt. 318 at ¶ 8;
Dkt. 343 at ¶ 1). Her position was ESPR when she left
IDES in November 2007. (Dkt. 325 at ¶ 10).
January 2005, Tomas tried to assist claimant Karolyn Helaine
with her application for benefits. (Dkt. 318 at ¶ 9;
Dkt. 329 at ¶ 9). According to Tomas, Helaine worked
weekends when she was laid off by her employer, who did not
inform Helaine of the lay off until the following weekend.
(Dkt. 318 at ¶ 10; Dkt. 329 at ¶ 10). Tomas wanted
to backdate Helaine's application to qualify her for
benefits, but was instructed not to backdate the application.
(Dkt. 318 at ¶ 15; Dkt. 329 at ¶ 15; Dkt. 343 at
¶ 3). Tomas did as instructed, but noted “denial
by Ware” as the reason for denial of benefits.
7, 2006, Tomas and Ousley had an email exchange concerning a
position at the Grand Avenue office and Tomas' interest
in a job only if it had a Polish option. (Dkt. 323 at ¶
73). A Polish option means the individual could speak Polish
and would get bilingual pay as an option; the option attaches
to the job. (Id.). Ousley advised her of the Grand
Avenue position. (Id. at ¶ 74). Tomas was
unhappy in that office after not getting the promotion and
wanted a transfer. (Id.). On July 10, 2006, Ousley
advised Tomas that she could not get her into that position,
but Tomas could put in a request for transfer to the Evanston
office. (Id. at ¶ 75).
August 1, 2006, Tomas was detailed to another local IDES
office, the Diversey office, as an ESPR with Polish Option,
and was subsequently detailed back to the Addison office in
June 2007. (Dkt. 323 at ¶ 78; Dkt. 325 at ¶ 19). A
temporary assignment to another location is called a
“detail transfer” in which an employee leaves one
position for another position for a particular period of
time. (Dkt. 323 at ¶ 76). Tomas' Sixth Amended
Complaint concedes this move was a “detail.”
(Dkt. 145 at ¶ 41). Unlike a “detail, ” a
“transfer” is permanent assignment to another
office. (Dkt. 323 at ¶ 76).
counseling of an employee is not considered discipline and
records of oral counseling do not go to the employee's
master file at the Central Office. (Dkt. 325 at ¶ 17).
Records of oral counseling remain at the local office and
there are no negative consequences, such as docked pay,
suspension or similar action, upon an employee receiving oral
counseling. (Dkt. 325 at ¶ 17; Dkt. 339 at ¶ 10).
The AFSCME Collective Bargaining Agreement expressly states
that “counseling and corrective action plans are not
considered disciplinary actions.” (Dkt. 325 at ¶
received oral counseling and reprimands over the course of
her employment, but was never formally disciplined. (Dkt. 325
at ¶ 15; Dkt. 339 at ¶ 4). As a result of the oral
counseling, Tomas never lost any time, pay, or seniority.
(Id.). For any oral counseling he gave to an
employee as Administrator of the Addison office, Johnson
would write a memorandum, documenting the conversation. (Dkt.
325 at ¶ 16; Dkt. 339 at ¶ 9). Johnson never sent
any oral counseling memoranda to the Central Office of IDES
to be put in an employee's master file. (Id.).
25, 2005, Johnson and Ware issued a counseling notice to
Tomas for mailing appeals to an incorrect address. (Dkt. 318
at ¶ 19; Dkt. 323 at ¶ 27; Dkt. 339 at ¶ 5).
ESPRs handle appeals, which are also called
“reconsideration determinations, ” as part of the
usual function of their job. (Dkt. 325 at ¶ 35). Johnson
taught Tomas how to handle appeals. (Id. at ¶
counseling instance in 2005 involved, Frank Kida, a deaf-mute
Polish claimant sought IDES benefits. (Dkt. 318 at ¶ 20;
Dkt. 329 at ¶ 20). His file was assigned to Tomas. (Dkt.
318 at ¶ 20; Dkt. 329 at ¶ 20). On December 15,
2005, Johnson and Ware sent Tomas a memorandum counseling her
for the handling of the Kida file, and for making
“repeated, ethnically charged remarks to and about
Ruben Calderon, ” who handled the Kida file after
Tomas. (Dkt. 325 at ¶ 23; Dkt. 339 at ¶ 6). On
December 20, 2005, Calderon emailed Johnson to document the
December 15, 2005, incident where Tomas said, “if you
are black you get everything.” (Dkt. 339 at ¶ 7).
That same day, Tomas wrote to Johnson, stating that her
conversation with Calderon was regarding his decision to deny
Kida benefits, claiming that Ware, as supervisor, should make
that decision. (Id. at ¶ 19).
April 6, 2006, Johnson emailed Tomas to advise her that on
April 10th he would be issuing an Oral reprimand for
insubordinate conduct on April 5, 2006. (Dkt. 323 at ¶
34; Dkt. 339 at ¶ 12). Johnson further advised her that
she could have a Union Steward present if she wished. (Dkt.
323 at ¶ 34). Regarding the April 5, 2006, incident Tomas
testified that she was given training logs that she claims
falsely represented the amount of training Voityna had
provided. (Dkt. 343 at ¶ 19). She further testified that
Johnson had screamed at her and tried to force her to sign
the logs. (Id.). Johnson testified that when an
employee refuses to sign time logs, he just makes a note of
the refusal and moves on. (Id.). Tomas testified
that she told Johnson and Voityna, who was also present at
that meeting, that she was having chest pains and had to have
immediate sick leave. (Id. at ¶ 20). According
to Tomas, they initially refused, but then let her leave.
(Id.). She went to the hospital where they told her
it was stress related. (Id.). On April 10, 2006,
Johnson issued the oral reprimand with Herron, as Chief
Steward, and Voityna, as Tomas' supervisor, present at
the meeting. (Dkt. 323 at ¶ 36; Dkt. 346 at ¶ 20).
After the meeting, Herron told Tomas he did not think she
should grieve the oral reprimand, though Tomas disagreed, she
did not pursue a grievance. (Dkt. 323 at ¶ 37).
were several other occasions in 2006 on which Johnson
counseled Tomas for her conduct, including February 24, April
14, June 14, and June 26. (Dkt. 329 at ¶ 25; Dkt. 339 at
¶¶ 14, 15, 16). It also is undisputed that Johnson
orally counseled and wrote counseling memoranda for several
non-white employees at the Addison office, including Chiquita
Harris, Marie Mora, and DeWitt Jackson. (Dkt. 325 at ¶
employee to move from an employment security program
representative (“ESPR”) to an employment security
service representative (“ESSR”) position, she
must have seniority and a promotional grade from CMS.
(Id. at ¶ 53). The standard probationary period
for employees promoted from ESPR to ESSR is four months.
(Id. at ¶ 47). On March 1, 2006, Tomas reached
the top of the promotion list and was promoted to ESSR,
subject to a four-month probationary period ending June 30,
2006. (Dkt. 318 at ¶ 26; Dkt. 325 at ¶ 52; Dkt. 329
at ¶¶ 26, 27; Dkt. 339 at ¶ 11). The
probationary period determines whether an individual can
perform the duties of the job and be eligible for
certification in that title. (Dkt. 325 at ¶ 49). Tomas
began work in her new role on April 3, 2006. (Dkt. 346 at
¶ 15). Johnson testified that he was happy that Tomas
was promoted because he always needed more people to do the
work. (Dkt. 325 at ¶ 56).
works on more complicated cases than an ESPR. (Dkt. 325 at
¶ 42). An ESSR performs additional adjudications on the
major issue (voluntary leaving versus discharge) in addition
to what an ESPR performs. (Id. at ¶ 43). The
claimant interview process is the same for both positions and
was guided by the Illinois Benefits Informational Systems
(“IBIS”) system that supplied questions for the
ESPR or ESSR to ask the claimant. (Id. at ¶
45). IDES employees who needed training had access to online
training resources for the IBIS. (Id. at ¶ 21).
Tomas testified that she received IBIS training.
(Id. at ¶ 23).
supervised the on-the-job training of probationary ESSRs,
including Tomas. (Id. at ¶¶ 31, 63). New
ESSRs are given the same statewide training plan, including a
calendar as to how to assign cases during the probationary
period, they start with five cases a day four days a week
with Friday being the backlog day and then increase to ten
cases a day. (Id. at ¶ 54). Tomas received the
same training as all other employees placed into the
probationary period for an ESSR. (Id. at ¶ 59).
Voityna allowed Tomas to observe her while interviewing
claimants. (Id. at ¶ 55). Tomas was assigned
twenty cases the first week, but did not complete her cases
by Friday. (Id. at ¶ 64). Voityna provided a
daily log of Tomas' progress during the probationary
period. (Id. at ¶ 61). Voityna stopped
assigning her cases. (Id. at ¶ 66).
personally observed Tomas' training. (Id. at
¶ 60). He also requested an extension for Tomas'
probationary period because she was not learning the work in
the allotted time. (Id. at ¶ 57). The
probationary period could only be extended if the employee
was on an official leave of absence. (Id. at ¶
51). During the period of March 1, 2006, to May 16, 2006,
Tomas received poor performance reviews. (Dkt. 318 at ¶
35). Tomas was insubordinate to her supervisors, particularly
Voityna. (Dkt. 325 at ¶ 67).
Tomas was not performing adequately, Johnson recommended that
Tomas not become an ESSR. (Dkt. 325 at ¶ 58). Voityna
was not involved in the decision to return Tomas to the ESPR
position. (Id. at ¶ 72). On May 18, 2006,
Tomas' supervisors issued an evaluation of Tomas'
ESSR probation. (Dkt. 323 at ¶ 40). They recommended she
return to her prior role as ESPR due to her inability to
perform the job duties of ESSR. (Id. at ¶ 40).
IDES provided Tomas with the following notice:
You are hereby notified that, in accordance with CMS
Personnel Rule 302.320, Failure to Complete Probationary
Period, you are being involuntarily returned to your former
position of ES Program Representative, effective June 28,
2006, prior to the completion of your four (4) month
promotional probationary period. This action is being taken
as a result of your inability to perform the duties of the ES
Service Representative position for which you were promoted,
effective March 1, 2006.
(Id. at ¶ 41). CMS Personnel Rule 302.320
states: “An employee may not be promoted, demoted,
discharged, or transferred during the probationary period
without the approval of the Director. (Dkt. 318 at ¶
36). On June 30, 2006, after the probationary period was
complete, Tomas was returned to her ESPR role because she did
not meet the requirements to pass probation. (Dkt. 325 at
¶¶ 69, 71). She received the higher ESSR salary for
the entire four-month probation. (Id. at ¶ 70).
Article XXVII of the CBA stipulates that two evaluations be
given during the probationary period with one at the
mid-point and the second two weeks prior to the end of
probation. (Dkt. 318 at ¶ 37).
testified that at least one employee of Polish descent was
promoted at the Addison office during the relevant time.
(Dkt. 325 at ¶ 26). Voityna trained a woman of Polish
descent, Agnieszka Szczanik, in the ESSR position, and she
was later promoted from ESSR to field office supervisor in
the Addison office. (Id. at ¶ 32). Tomas
admitted that another Polish employee at IDES, Danuta Lech,
was promoted to ESSR and that Voityna did not have an
adversarial relationship with her. (Id. at ¶
was supervising Equilla Simms, an African American woman,
during her ESSR probationary period when Simms was returned
to an ESPR position at the end of her probationary period.
(Id. at ¶ 33). Simms voluntarily returned to
her ESPR position, but was promoted a year later to ESSR.
(Dkt. 343 at ¶ 31).
Tomas failed to pass probation, Chief Steward Herron
contacted Fisher and instructed him to contact Tomas. (Dkt.
323 at ¶ 42). On May 18, 2006, Fisher emailed Tomas his
contact information, so she could send him whatever
documentation that she had and to follow-up with him, which
she did. (Id. at ¶¶ 43, 44). Fisher met
with Tomas in late May to discuss her grievance regarding her
failure to pass probation. (Id. at ¶ 45). Based
on the documents that Tomas provided, including her
evaluation, Fisher believed the issue was appropriate for a
grievance. (Id. at ¶ 45). In their meeting,
Tomas informed Fisher of what she viewed as harassment, the
shortened period of probation, and the lack of ...