United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Robert Blakey, United States District Judge.
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. . Defendant moved for summary judgment. .
For the reasons explained below, this Court grants
Local Rule 56.1 and Evidentiary Rules
following facts come from Defendant's Local Rule 56.1
statement of material facts , and Plaintiff's Local
Rule 56.1 statement of additional facts .
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.
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.
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. ¶
Plaintiff's First Termination
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.
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.
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.
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.
Plaintiff's Second Period of Employment
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.
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.
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.
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.
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.
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.
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.
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.
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
Plaintiff's Second Termination
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.
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.
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 ...