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Tomas v. State Department of Employment Security

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

March 27, 2018

SUSAN M. TOMAS, Plaintiff,



         Plaintiff filed a Sixth Amended Complaint [134], 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.[2] Plaintiff moves for summary judgment [295] 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 [299] on Counts I-VIII. The Union defendants, AFSCME Local 1006, Patricia Ousley, Rudeley Herron, and Mark Fisher, move for summary judgment in their favor [303] on Counts X-XI. This Court heard oral arguments on the motions on January 30, 2018.[3] For the reasons stated herein, the Court denies plaintiff's summary judgment and grants summary judgment in favor of defendants.


         The following facts are undisputed.[4] 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).

         During 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).

         Defendant, 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).

         Defendant, 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. (Id.).

         Defendant, 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.).

         Collective Bargaining Agreement and Grievance Procedures

         From 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).

         The CBA 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 Union. (Id.).

         When an 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).

         The 3rd 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).

         Tomas' Employment at IDES

         Tomas 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).

         In 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. (Id.).

         On July 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).

         On 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).

         Tomas' “Counselings”

         Oral 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 ¶ 18).

         Tomas 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.).

         On May 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 ¶ 36).

         Another 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).

         On 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[5], 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).

         There 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 ¶ 26).

         Tomas' Promotion

         For an 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).

         An ESSR 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).

         Voityna 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).

         Johnson 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).

         Because 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).

         Johnson 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 ¶ 41).[6]

         Voityna 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).

         Grievance I: Promotion

         When 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 ΒΆ 45). In their meeting, Tomas informed Fisher of what she viewed as harassment, the shortened period of probation, and the lack of ...

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