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Austin v. City of Chicago

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

March 27, 2018

KEVIN AUSTIN, Plaintiff,


          John Robert Blakey, United States District Judge.

         Plaintiff Kevin Austin worked for Defendant City of Chicago intermittently until his most recent termination in July 2014. Plaintiff alleges that Defendant fired him because of his race and in retaliation for protected activity, and brings claims for discrimination and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. [26]. Defendant moved for summary judgment. [66]. For the reasons explained below, this Court grants Defendant's motion.

         I. Background

         A. Local Rule 56.1 and Evidentiary Rules

         The following facts come from Defendant's Local Rule 56.1 statement of material facts [65], and Plaintiff's Local Rule 56.1 statement of additional facts [69].[1]

         Local Rule 56.1 requires the non-movant to file a concise response to each of the movant's statements using “specific references” to the record to support any denial of the movant's facts. See Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000). General denials are “insufficient” to rebut a statement of fact and may be disregarded. Id. At summary judgment, courts “will not consider any additional facts” included in a party's response, but rely only upon those contained in that party's statement of facts and statement of additional facts. LaSalvia v. City of Evanston, 806 F.Supp.2d 1043, 1045 (N.D. Ill. 2011) (citing Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809 (7th Cir. 2005)). Finally, if materials cited to support a denial fail to “clearly create a genuine dispute over the movant's allegedly undisputed fact, the nonmovant should provide an explanation.” Malec, 191 F.R.D. at 584. If a party inadequately responds to an opponent's Rule 56.1 statement, the court may deem the opponent's factual allegations admitted. Id.

         Applying these rules, this Court disregards Plaintiff's responses to paragraphs 10, 14, 28, 30, 32-35, 41, 43, 44, 52, 54, 60, 62, 63-65, and 71-74 of Defendant's statement of facts. In each of these responses, Plaintiff either fails to cite specific record evidence to justify his denial or cites irrelevant facts without providing an explanation. See R. DSOF. This Court deems Defendant's corresponding statements of fact admitted. See Malec, 191 F.R.D. at 584.

         B. Plaintiff's Claim

         Defendant first hired Plaintiff, an African-American man, in July 1998 as a laborer in the Department of Streets and Sanitation (DSS). DSOF ¶¶ 1, 28. In 2006, Defendant fired Plaintiff and placed him on the Ineligible for Rehire (IFR) list. Id. ¶¶ 27-29. Defendant hired Plaintiff for the second time in 2012 and fired him again in 2014. Id. ¶¶ 36, 47. Plaintiff claims that Defendant's stated reason for his second firing-that Defendant became aware of Plaintiff's IFR status-was pretextual and that he was actually fired because of his race and in retaliation for the internal complaints of discrimination he made to Defendant. See id. ¶ 7; [26].

         C. Plaintiff's First Termination

         Defendant first fired Plaintiff in November 2006, following a report from the Chicago Office of the Inspector General (OIG) about Plaintiff's misconduct. Id. ¶¶ 28, 29. The OIG found that Plaintiff possessed a stolen U-Haul truck in 2005, and did not disclose a previous conviction for a different crime on his original employment application in 1998. Id. These acts violated Personnel Rule XVIII, Section 1, paragraphs 15 and 50, which prohibit any illegal acts by City employees, and Personnel Rule XVII, Section 1, paragraph 6, which prohibits failing “to disclose any information requested or providing a false or misleading answer” in any “document or application provided by the City.” See [65-3] at 51, 55; [65-5] at 125. Plaintiff's application also asked, without qualification: “Have you ever been convicted of any crime?” See [65-5] at 124. The OIG recommended that Plaintiff be terminated and “never be rehired.” DSOF ¶ 28; [65-5] at 125.

         Plaintiff contested his discharge. DSOF ¶ 30. In February 2007, the City's Personnel Board held a full evidentiary hearing into Plaintiff's termination, at which Plaintiff was represented by counsel and presented evidence. Id. The Board determined that Plaintiff had, in fact, possessed a stolen U-Haul, in violation of criminal statutes and the City's personnel rules, and affirmed Plaintiff's termination on that basis. Id.; [65-7] at 186-96.

         In August 2007, about nine months after his first firing, Plaintiff received a letter from Christopher Owen, the City's Deputy Commissioner for the Department of Human Resources (DHR), informing Plaintiff that his termination was “for cause, ” making him ineligible for future employment with the City. DSOF ¶ 32; [65-5] at 29. When Plaintiff inquired about his eligibility for rehire in 2010, DHR Recruiting Analyst Christina Batorski informed Plaintiff that he was “ineligible for re-employment with the City of Chicago permanently.” See DSOF ¶ 34; [65-7] at 184.

         DHR maintains a database of its employee records (the CHIPPS database). DSOF ¶ 13. The CHIPPS database listed Plaintiff's race, as did his criminal background check form in 2012. R. DSOF ¶ 53. Since 2011, DHR has included information in the CHIPPS system about employees who, due to the circumstances of their resignation or discharge from City employment, are coded as IFR, either indefinitely or for a set period. [65-6] at 26-31, 63-64; [65-7] at 21-22. Before 2011, DHR maintained the IFR information in an Excel spreadsheet. [65-7] at 22. To place an employee on the IFR list, Owen would “pull the information related to the termination” and “write up a quick memo” to the DHR commissioner, who at the time of Plaintiff's 2006 discharge was Jackie King. [65-5] at 31. Owen wrote such a memo to King after Plaintiff's termination, which King approved before Defendant sent the August 2007 letter to Plaintiff. DSOF ¶ 32.

         D. Plaintiff's Second Period of Employment

         DSS rehired Plaintiff in September 2012, first as a seasonal pool motor truck driver (pool MTD) and then as a full-time pool MTD from April 2013 through July 2014. DSOF ¶¶ 36, 39. Plaintiff claims that as of his second hiring, Batorski-still working for DHR-knew his race. R. DSOF ¶ 53. As a pool MTD, Plaintiff plowed snow in winter and drove garbage trucks. DSOF ¶ 38. Pool MTDs normally met at a central location before going out to pick up other garbage truck workers. [65-2] at 4, 24. Plaintiff claims that Defendant often assigned him to start at different garages in the morning, while allowing white employees of similar seniority to report to the same location each day. Id. at 7. In his deposition, Plaintiff described receiving his assignments from Steve Tate, his supervisor, each night before the next day's shift. Id. at 10. Plaintiff believed the assignments originated from City Hall. Id. Accordingly, Plaintiff contacted Batorksi, now Deputy Commissioner of DHR, to complain, believing that Tate had “no power” over his assignments. Id.

         E. Alleged Retaliation

         Plaintiff alleges that Defendant decided to terminate him in retaliation for protected activity. DSOF ¶ 55. Specifically, Plaintiff engaged in protected activity when he complained to Batorski about alleged racial discrimination. See [65-2] at 9. First, Plaintiff claims that he personally delivered a written complaint regarding his assignments to Batorski. Id.; DSOF ¶¶ 26, 62. The record remains unclear as to the timeline of Plaintiff's interactions with Batorski, see, e.g., [65-2] at 7-10, but Plaintiff says that he spoke to Batorski after receiving an assignment to begin a shift at O'Hare International Airport in December 2013, a few months after he was rehired, id. at 9. Plaintiff felt his assignments were discriminatory because they sent him to locations all around Chicago, while white employees reported to the same starting location every day. See id. at 7, 9. According to Plaintiff, after their conversation, Batorski told Plaintiff that he could report to a central location instead of going to O'Hare. Id. at 10. Nothing in the record shows that Defendant took any adverse action against Plaintiff from December 2013 until his eventual termination in July 2014.

         In June 2014, approximately one month before Plaintiff's discharge, DHR received a Freedom of Information Act (FOIA) request from the Chicago Sun-Times for work histories of approximately 13 people, including Plaintiff. DSOF ¶ 40. Upon conducting a search for these work histories, DHR realized that Plaintiff was on the IFR list, yet working for the City at DSS. Id. Owen then reviewed Plaintiff's work history, underlying termination paperwork, and the 2006 OIG report to make sure Plaintiff belonged on the IFR list. Id. ¶ 44.

         At this point, Owen requested a report comparing employee work histories to the IFR list to determine if any other current City employees had been coded IFR. Id. ¶ 45. The report identified four such employees, including Plaintiff. Id. The other three were Arthur Jones-another pool MTD with DSS-and two City Council employees: Thomas Sadzak and Jesse Smart. Id.

         Plaintiff suggests that Owen did not adequately inquire into the validity of Plaintiff's status on the IFR list, alleging that Owen did not recall what particular termination paperwork he reviewed and could not remember if he reviewed the OIG report. R. DSOF ¶ 44. But Plaintiff does not dispute that Owen reviewed Plaintiff's work history, which contained a code flagging him as ineligible for rehire, or that Plaintiff's termination paperwork contained the OIG report, which provided factual support for his termination. See [65-6] at 98, 101, 102.

         In early July 2014, a few weeks before Defendant fired Plaintiff, Plaintiff called Batorski to complain about being sent to different garages, unlike white employees of similar seniority. DSOF ¶ 62; PSAF ¶ 16. Batorski does not recall Plaintiff complaining that he was being sent to other garages, or that white employees did not receive similar assignments. [65-7] at 119.

         On July 11, Carolyn Mulaney, DHR's FOIA Officer, sent Plaintiff a letter to inform him that “DHR received an Illinois FOIA request for [his] disciplinary history, ” and that his work history (including his previous discharge) would be provided to the requesting party. DSOF ¶ 42.

         Plaintiff claims that racial discrimination prompted Defendant's investigation into his disciplinary file, because his initial discipline and status on the IFR list arose from mere allegations of misconduct for which he was never criminally prosecuted. Id. ¶ 51; R. DSOF ¶ 51; PSAF ¶ 1; [65-2] at 51. Defendant states that the Sun-Times' FOIA request prompted the investigation into Plaintiff's disciplinary file. DSOF ¶ 40. The parties do not dispute the existence or timing of the Sun-Times' FOIA request. See R. DSOF ¶ 40. DHR Deputy Commissioner Owen testified that when DHR receives a FOIA request, the Personnel Record Review Act mandates that DHR send a letter to the employee to inform him of the request. DSOF ¶ 14; see also 820 ILCS 40/7, 40/11. This rule is the reason Mulaney sent Plaintiff the July 11 letter. See DSOF ¶ 14.

         About two weeks before Plaintiff's termination and after Plaintiff received Mulaney's letter, Plaintiff called Batorski again to ask why he had received the letter. [65-2] at 7, 11. Plaintiff wanted to know why Sadzak, the City Council employee whose status on the IFR list was also revealed by the FOIA request, did not get a similar letter. Id. at 37. Batorski explained that the Personnel Record Review Act required the letter notifying him of the FOIA request. DSOF ¶ 59. Batorski told Plaintiff she could not speak to him about other employees and referred him to the OIG if he wanted to make a formal complaint. Id. ¶ 60; [65-7] at 123. Batorski does not recall Plaintiff mentioning Sadzak's race in this phone call and says that she did not know Sadzak's race. DSOF ¶ 60.

         F. Plaintiff's Second Termination

         Once DHR identified the employees on the IFR list currently employed by the City, Owen, Batorski, and DHR Commissioner Soo Choi recommended to DSS Commissioner Charles Williams that he discharge Plaintiff and Jones. DSOF ¶ 46. Owen knew Plaintiff's race when he recommended Plaintiff's termination, but states that race did not factor into his decision. [65-5] at 105-07. On July 24, 2014, Williams informed Plaintiff that he was terminated, effective at the close of business that day, and that he was ineligible for rehire. DSOF ¶ 47.

         Defendant states that Plaintiff's termination resulted from an administrative oversight of his previous placement on the IFR list. Id. ¶ 43. According to Owen, Plaintiff's rehiring was a mistake: Defendant simply failed to notice Plaintiff's status on the IFR list. Id.; [65-6] at 131. Plaintiff disputes this characterization, arguing that Owen was not involved in Plaintiff's rehiring in 2012, so his account is speculative. R. DSOF ¶ 43. Owen admits that he did not participate in Plaintiff's rehiring. [65-6] at 131. As DHR Deputy Commissioner since 2011, however, Owen testified based upon his knowledge of the City's past and present hiring practices, including for the period of Plaintiff's second hiring. See id. at 6. Specifically, in his deposition, Owen described a shift from manual to electronic screening of employment applications to account for Defendant's failure to notice Plaintiff's inclusion on the IFR list. See id. at 129-31. In any event, Plaintiff admits that, after his disciplinary history came to light in 2014, Owen reviewed DHR's files to confirm that Plaintiff was on the IFR list; Plaintiff also admits that he was, in fact, on the IFR list at this time. See DSOF ¶¶ 40-45; R. DSOF ¶¶ 44, 45.

         Plaintiff also claims that DSS Commissioner Williams lacked the discretion to fire Plaintiff, and suggests that the decision was made fully by Owen, Batorski, and Choi. R. DSOF ¶ 46. In support, Plaintiff cites a July 31 memo from Batorski to another DHR Deputy Commissioner, stating that DHR “required” DSS to terminate Plaintiff and Jones (as opposed to merely recommending termination). [69-1] at 9. Defendant asserts that the final decision to terminate Plaintiff rested with the head of the executive department that employed him; namely, Williams. See ...

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