United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL STATES DISTRICT JUDGE.
Kenneth Martin, Aaron Truesdell and Johnny Tejada filed this
action against their former employer, F.E. Moran, Inc., Fire
Protection of Northern Illinois (FPN) alleging racially
discriminatory employment practices. In their First Amended
Complaint, Plaintiffs each alleged violations of Title VII of
the Civil Rights Act (Count I) and of 42 U.S.C. § 1981
(Count III) based on their layoffs and FPN's failure to
transfer or rehire them. (Dkt. No. 21.) Plaintiff Tejada also
alleged two claims of wage discrimination in violation of
Title VII of the Civil Rights Act (Count II) and of 42 U.S.C.
§ 1981 (Count IV). (Id.)
April 10, 2017, the Court denied FPN's Motion for Summary
Judgment as to all of Plaintiffs' claims. (Dkt. No. 280.)
Specifically, with regard to Counts I and III, the Court
found that Martin's and Truesdell's discrimination
claims survived, not because of their respective layoffs, but
because of FPN's subsequent failure to transfer or
rehire. (Dkt. No. 280 at 22, 24.) The parties subsequently
narrowed the remaining claims by stipulation. Plaintiff
Tejada stipulated that he waived his claim for unlawful
discrimination under Title VII in Count I (Dkt. No. 301) and
for wage discrimination under Title VII and Section 1981 in
Counts II and IV. (Dkt. No. 294.) Plaintiffs Martin and
Truesdell stipulated that they waived their claims for
unlawful discrimination in Counts I and III based on
FPN's failure to rehire them following their 2009
layoffs. (Dkt. No. 307; see also Dkt. No. 220 at 7,
n.8-9; Dkt. No. 221 at 7, n.6-7.)
Court held a twelve-day bench trial between April 10, 2017
and May 12, 2017 to resolve the remaining claims, which
included: unlawful discrimination against Martin under
Section 1981 (Count III) based on FPN's failure to
transfer him after his 2009 layoff and under Title VII (Count
I) and Section 1981 (Count III) based on FPN's failure to
transfer or rehire him after his 2010 layoff; unlawful
discrimination against Truesdell under Section 1981 (Count
III) based on FPN's failure to transfer him after his
2009 layoff and under Title VII (Count I) and Section 1981
(Count III) based on FPN's failure to transfer or rehire
him after his 2010 layoff; and unlawful discrimination
against Tejada under Section 1981 (Count III) based on his
2010 layoff and FPN's subsequent failure to transfer or
rehire him. After listening to the testimony presented by
both parties and reviewing the documents entered into
evidence at trial, the Court makes the following findings of
fact and conclusions of law, pursuant to Federal Rule of
Civil Procedure 52.
employs sprinkler fitters to install sprinklers for fire
safety in buildings ranging from public schools, to banks, to
high rises in and around Illinois. FPN was formed in 2007,
when a corporation named F.E. Moran Fire Protection Northern
Illinois split into two offices: FPN, covering the
Chicagoland area, and F.E. Moran, which continued to operate
out of Champaign, Illinois. (Tr. 1396:18-1397:5 (Metcalfe)).
Both FPN and F.E. Moran are wholly-owned subsidiaries of
parent company Armon, Inc. (“Armon”) (Tr. 1398:
11-13, 1399: 3-5 (Metcalfe)). FPN operated separate and apart
from other affiliated companies of the Armon Group and
operated out if its own location in a separate building as
Armon. (Tr. 1489:24-1490:2, 1492:19-21 (Metcalfe)).
Metcalfe served as president of FPN from September 2007 until
April 1, 2016. (Tr. 1396:18-1397:5, 1401:1-2 (Metcalfe)). As
president, Metcalfe reported to Brian Moran, the president
and later CEO of Armon. (Tr. 1399:22-1400:6 (Metcalfe)).
Between 2008 and 2017, John Hebert served under Metcalfe as
vice president and later senior vice president of FPN. (Tr.
1271:16-22 (Hebert)). In both roles, Hebert oversaw all
departments within FPN and was responsible for the
superintendents. (Tr. 1254:4-25 1303:5-6 (Hebert)). Hebert
testified that he could not recall there being any
African-American executives at FPN during the time he worked
there. (Tr. 1279:24-1281:10 (Hebert)). Neither Metcalfe nor
Hebert made any employment decisions regarding sprinkler
fitters including Plaintiffs. (Tr. 1302:25-1303:4, 1312:8-13
(Hebert); Tr. 1033:8-10 (Acred); Tr. 1490:6-21, 1491:3-16
are responsible for scheduling the manpower and materials
necessary to complete jobs won by FPN. (Tr. 855:6-8
(Sullivan); Tr. 1014:23-25 (Acred)). Accordingly,
superintendents have ultimate authority at FPN over
employment decisions regarding sprinkler fitters, including
whether to hire, transfer, layoff or rehire a particular
fitter. (Tr. 854:14-24 (Sullivan); Tr. 1797:25, 1798:1-2,
9-23 (Waters); Tr. 1127:18-20, 1214:6-8 (Barcik); Tr.
1343:12-16 (Hebert)). Superintendents are also responsible
for finding and assigning minority fitters to comply with
minority hiring goals. (Tr. 1788:5-7 (Waters)).
jobs require a project manager, whose responsibility it is to
manage the budget, review and monitor the project design,
handle logistical issues including safety, track the number
of hours used on a job and generally to ensure that the
superintendents have whatever information they needed for
that particular job. (Tr. 1125:8-18, 11:26:5-9 (Barcik); Tr.
1746:23-1747:9, 1753:8-24 (Waters)). During the time
Plaintiffs were employed by FPN, project managers also
provided input related to hiring decisions, in particular
with regard to productivity, based on the project
managers' observations in the field. (Tr.
1209:18-1211:11, 1215:7-11, 1216:12-17 (Barcik); Tr.
Sullivan, Jr. served as senior superintendent from 2001 until
February 2009, initially for F.E. Moran Fire Protection
Northern Illinois and, after the split, for FPN. (Tr.
853:12-17; 857:10-12 (Sullivan); Tr. 917:2-14 (Acred); Tr.
1126:10-16 (Barcik)). During that time, other FPN
superintendents reported to Sullivan, including: John Waters,
who served as superintendent from summer 2007 until early
2008; Scott Acred, who became superintendent in January 2008;
Steve Procter, who served as superintendent from July 2008
until January or February 2009; and Mark Parker. (Tr.
855:14-22, 857:13-18 (Sullivan); Tr. 1734:15-1734:11
(Waters); Tr. 917:2-4 (Acred); 1623:18-1624:20 (Procter)).
FPN has never hired an African-American superintendent; all
FPN superintendents have been white males. (Tr.
testified that the FPN “field management team”-a
group of superintendents and project managers that discussed
hiring decisions-existed as early as 2007, while he was
senior superintendent. (Tr. 888:25-889:3 (Sullivan); Tr.
1797:13-1798:8 (Waters)). The field management team continued
after Sullivan was transferred in 2009 and as other
individuals became superintendent.
testified that as senior superintendent, he made employment
decisions in conjunction with other superintendents,
including Acred, and would consider the opinions of project
managers. (Tr. 875:24-876:4; 877:11-15 (Sullivan)). Sullivan,
who worked with Acred for more than 20 years, testified that
Acred is a good evaluator of personnel and job situations and
that he valued Acred's opinion. (Tr. 891:6-12
(Sullivan)). In fact, Sullivan and Acred separately testified
that, during Sullivan's tenure as senior superintendent,
they never disagreed with each other's evaluations of
personnel or opinions regarding layoffs or transfers. (Tr.
891:13-17 (Sullivan); Tr. 1044:1-6 (Acred)).
Sullivan was transferred to a different role in February
2009, Acred became primarily responsible for employment
decisions related to fitters and made those decisions in
conjunction with the field management team, which from 2009
until roughly 2012 consisted of Acred, project manager Robert
Barcik, and project manager John Waters. (Tr. 918:3-919:18
(Acred); Tr. 1755:5-10 (Waters)). Despite project
managers' involvement on the field management team,
superintendents at all times retained ultimate authority for
hiring decisions and for finding and assigning minority
fitters for jobs. (Tr. 1214:6-7 (Barcik); Tr.
1787:16-1788:11, 1797:25-1798:23 (Waters)).
Collective Bargaining Agreement and the Local 281
relevant times, FPN was subject to the terms of the
collective bargaining agreement (“CBA”) between
the National Fire Sprinkler Association and Local 281 for its
sprinkler fitters within Local 281's geographic
jurisdiction, which includes all of Chicagoland and Northwest
Indiana. (Final Pretrial Order (FPTO), Ex. 1 Statement of
Uncontested Facts (SOUF) at ¶ 5; JX36 Collective
Bargaining Agreement (CBA), eff. June 2008; JX37 CBA, eff.
June 2011). FPN can hire only union workers and largely hires
fitters from Local 281. (Tr. 859:23-860:4 (Sullivan)).
are two classes of employee fitters, foreman and journeymen.
Foremen take on a managerial role and journeymen work under a
foreman. A foreman's responsibilities include testing
equipment, tracking hours worked by journeymen and completing
payroll pay work. (Tr. 53:16-54:8. (Martin)). Martin and
Truesdell worked in both foreman and journeyman sprinkler
fitter roles for FPN; Tejada worked only as a journeyman
fitter for FPN. (Tr. 53:5-8 (Martin); Tr. 323:6-7, 20-23
(Truesdell); Tr. 774:15-17 (Tejada)). The terms and
conditions of Plaintiffs' employment with FPN, including
pay, were governed by the union contract. (Tr. 380:17-19
(Truesdell); Tr. 793:4-6, 794:15-17 (Tejada); JX36; JX37).
281 sprinkler fitters are hourly wage employees; there is no
provision for a salary in the CBA. (JX36; JX37). The CBA does
provide different wage rates for foremen and journeymen
fitters and requires that “[o]ne man shall be
designated as Foreman on each job” for the purposes of
wages; therefore, if there is only one fitter assigned to a
job, that fitter receives foreman pay. (JX36; JX37; Tr.
163:21-23 (Martin); Tr. 382:5-10 (Truesdell); Tr. 794:5-14
also requires that contractors provide a fitter four-hour
notice that he or she is being laid off. (JX36; JX37). The
CBA does not include any provisions addressing the hiring,
transfer, layoff or rehire of fitters-including any provision
requiring that hiring decisions be based on seniority.
(Id.). It does, however, include an
anti-discrimination policy, which states: “There shall
be no discrimination with regard to race, color, religion,
sex, age or national origin by either the Union or the
Employer relative to employment or conditions of
employment.” (Id.) None of the Plaintiffs ever
filed any type of grievance with Local 281 regarding their
employment with FPN either during their employment or
thereafter. (Tr. 162:21-23, 187:23-188:2 (Martin); Tr.
392:6-8 (Truesdell); Tr. 811:11-16 (Tejada)).
281 does not have a system for letting its members know of
available jobs. (Tr. 98:10-12 (Martin); Tr. 337:24-338:6
(Truesdell)). Rather, it is standard in the sprinkler fitter
industry for fitters to obtain work by calling
superintendents of contractors to inquire as to any available
jobs. (Martin Tr. 138:9-21; 205:14-23; Truesdell Tr.
393:15-395:6; Tejada Tr. 778:24-779:9, 822:23-823:2; Tr.
1039:20-24 (Acred); Tr. 1311:13-24 (Hebert); Tr. 1799:16-19
FPN Hiring Practices
The Hiring Process Generally
sales personnel prepare and submit bids for jobs. (Tr.
1736:21-1738:4; 1738:11-1739:24 (Waters)). One of the largest
components of such bids is the estimated labor
cost-i.e., the amount of labor and number of hours
to be spent on the job. (Tr. Tx. 1742:18-1743:9 (Waters)).
Whether the job is ultimately profitable depends, in part, on
whether the labor estimate in the bid is accurate. ((Tr.
1743:10-24; 1746:14-17 (Waters); Tr. 1107:10-21 (Acred)).
are made aware of upcoming jobs as soon as the job is sold.
((Acred 30(b)(6) Dep. Des. 23:3-8, 23:14-17)). They are then
responsible for evaluating how many employees will be needed
for the job and when the job will start. (Id.). FPN
does not seek new employees each time it gets a new job;
rather, the superintendent often transfers fitters from one
job to another. (Acred 30(b)(6) Dep. Des. 45:2-11)
FPN does hire new fitters for a job, it does so either from
an out-of-work list provided by the union or based on calls
informing superintendents that certain fitters need work.
(Tr. 859:19-22 (Sullivan)). Consistent with industry
standard, FPN does not have a policy or practice of posting
or advertising openings for sprinkler fitter jobs nor did it
have an application form for sprinkler fitter jobs. (FTPO,
Ex. 1 at ¶ 6; Tr. 1311:25-1312:2 (Hebert); Tr.
138:22-139:11 (Martin); Tr. 395:7-9 (Truesdell); Tr.
1034:11-16 (Acred); Tr. 1799:20-21 (Waters)). Whether a
fitter actually gets work from calling the superintendent
“always” depends, at least in part, on timing.
(Tr. 895:14-25 (Sullivan); Tr. 1980:15-21 (Waters)).
end of a job, the fitters are either transferred to other
jobs or laid off. (Tr. 861:21-25 (Sullivan)). The fitter
might also be asked to “sit” meaning to wait a
few days or weeks for work without being laid off. (Tr.
1913:21-1914:13; 1935:2-11 (Waters)). While
“sitting” the fitter is free to seek employment
elsewhere including for a competitor sprinkler fitter
company. (Tr. 1980:11-14 (Waters)). A fitter's benefits
including health insurance only accrue based on actual hours
worked; therefore, when not working, a fitter not only earns
no wage but also accrues no benefits. (Tr. 1980:3-10
(Waters); Tr. 1983:11-1984:4 (Waters)). If laid off
completely, however, the fitter can at least collect
unemployment benefits. (Tr. 1913:21-1914:1 (Waters)).
testified that whether a fitter is transferred or laid off
depended primarily on FPN's upcoming workload. (Tr.
861:21-862:6 (Sullivan)). He explained that as a job was
winding down, the superintendent forecasts incoming jobs and
estimates manpower needs. (Tr. 860: 17-25 (Sullivan)). He
described it as “kind of a juggling act, just trying to
. . . keep people employed.” (Id.) Sullivan
explained also that, to assist in this process,
superintendents would keep schedules of ongoing and upcoming
jobs and have meetings with project managers and designers
about those jobs. (Tr. 860:17-861:20 (Sullivan)).
testified that when making a transfer decision, he considered
the work available, if any, and who was best suited for that
work, taking into account the speed and productivity of the
fitters. (Tr. 1028:14-25, 1029:1-2, 251030:1-15 (Acred)).
Similarly, Waters testified that whether a fitter was
transferred to another job or asked to “sit”
depended on the timing, the jobs available, and the qualities
and qualifications of the particular fitter. (Tr. 1980:15-21
(Waters)). Plaintiff Martin testified that, as he understood
it, if a fitter was “doing a good job” and
“FPN had work, ” FPN would transfer the fitter to
a different job site when another job ended. (Tr. 140:9-17
presented some testimony that fitters with company service
trucks, which hold all materials necessary for a job, were
more likely than fitters without service trucks to be
transferred or kept busy during slow times and not laid off.
Waters testified, for example, that fitters with trucks could
more easily get from job-to-job with all the necessary tools
and, therefore, were more often transferred out to work for
short periods of time on multiple jobs. (Tr. 1804:17-1810:6,
1862:9-1863:2, 1979:15-1980:2 (Waters)). Waters also
testified that FPN gave service trucks to the best foreman,
or the “all-star team” (Tr. 1805:9-17, 1962
(Waters)); however, there was little other evidence
confirming that was the case.
Employee Manual applies to all Armon entities, including FPN.
The Manual contains an Equal Employment Opportunity policy
that prohibits discrimination based on race. (JX38 at 23; Tr.
1447:16-1448:14 (Metcalfe)). The Manual also contains an
Anti-Harassment policy that prohibits the use of ethnic slurs
or racial epithets and other conduct based on a person's
race and provides a complaint procedure through which
employees can report concerns. (JX38 at 23-24; Tr.
1505:17-1506:10 (Metcalfe)). No other provisions in the
Manual bear directly on the hire, transfer, layoff, or recall
of sprinkler fitters. (JX38; 11/12/15 Acred 30(b)(6) Dep.
ensured FPN supervisors and employees were trained on the
EEOC policy. Tr. 1514:6-8 (Metcalfe)). Metcalfe testified
that FPN held a training sometime before 2009 that involved
counsel and brought in a subject matter expert to explain
FPN's expectations; FPN witnesses testified that, since
then, FPN has held periodic refresher trainings during which
the policy and complaint procedures were explained. (Tr.
1514:9-23 (Metcalfe); Tr. 1311:6-8 (Hebert); Tr. 1250:12-23
(Barcik)). Some FPN witnesses testified they were aware of
the policy and understood it prohibited discriminating based
on race; however, Acred could not recall any training on the
policy within the last ten years. (Tr. 1271:17-24, 1310:20-25
(Hebert); Tr. 1037:17-1039:15 (Acred); Tr. 1215:13-24
(Barcik)). Martin, Truesdell and Tejada also each received
and reviewed a copy of the policy during new employee
orientation and understood that it prohibited discrimination
based on race; Martin testified that he never received
training on the policy. (Tr. 67:11-17, 161:19-162:16
(Martin); Tr. 389:23-392:1 (Truesdell); Tr. 769:6-7,
821:13-822:13 (Tejada); DX22; DX59; DX110). None of the
Plaintiffs raised any complaints of discrimination with FPN.
(Tr. 162:21-23 (Martin); Tr. 392:9-12 (Truesdell); Tr.
825:14-16 (Tejada)). Hebert never received any complaints
that Acred was making unfair decisions, acting in a
discriminatory manner or had made race-based statements. (Tr.
1308:1-10 (Hebert)). No one ever made a complaint concerning
discrimination or racist comments at FPN to either Procter or
Barcik. (Tr. 1694:12-20, 1695:3-13 (Procter); Tr.
The Great Recession
sprinkler fitter industry began to slow down in 2008 when the
Great Recession hit. (Tr. 198:21-199:25, 200:1-10;
209:24-210:7 (Martin); Tr. 882:1-8, 907:18-908:1 (Sullivan);
DX99). Sullivan testified that, toward the end of his tenure,
FPN was not getting as many jobs; as a result, just prior to
his transfer, he had to lay off more people as jobs finished
up. (Tr. 882:1-14, 900:10-22 (Sullivan)). He testified also
that he could not recall there being any upcoming jobs when
he left his role as senior superintendent in February 2009.
(Tr. 901:11-14 (Sullivan)). Acred similarly testified that
the economic slowdown began just as he became superintendent
in early 2008 and that he faced layoff decisions as a result.
(Tr. 1051:15-19 (Acred)).
was, however, contradictory testimony regarding the actual
impact of the Great Recession on FPN's business,
particularly after 2010. Hebert testified that, in the time
period of about 2009 to 2010, a handful of the 60 to 70 Local
281 signatory contractors-i.e., FPN's
competitors-actually went out of business. (Tr. 1312:5-7,
1314:5-19 (Hebert)). Metcalfe testified that, during that
same time period, the total workforce at FPN decreased from
81 employees in 2009 to just 71 in 2010, and the number of
sprinkler fitters employed decreased by nearly half: from 47
in 2009 to 28 in 2010. (Tr. 1515:21-1517:24 (Metcalfe); Tr.
1300:9-16 (Hebert)). Metcalfe described 2010 as “a
terrible year.” (Tr. 1517:11 (Metcalfe)).
Metcalfe also testified that FPN's workload
“doubled” in 2010. (Tr. 1523:3-11 (Metcalfe)).
Similarly, Hebert testified that FPN's business increased
“significantly” “from 2007 . . . until
[his] last day of employment.” (Tr. 1385:25-1387:5
(Hebert)). Thus, to the extent FPN's business was
affected by the recession, it began to recover at least as
early as 2010.
the economic downturn, around 2008 FPN put a greater focus on
the speed and productivity of its workforce in order to
better compete against fellow contractors fighting for the
same jobs. (Tr. 895:1-25 (Sullivan); Tr. 1042:11-25 (Acred);
Tr. 1826:8-17 (Waters)). In order to evaluate its workforce
and as discussed in more detail below, the field management
team developed tools for ranking fitters based on
performance. (Tr. 1313:1-12 (Hebert)). FPN did not focus
solely on fitters; it also assessed other personnel, for
example, in design and sales, and made personnel cuts and pay
cuts throughout the company. (Tr. 1301:1-8, 1313:1-17
(Hebert)). However, FPN could not cut the pay of its fitter
workforce because it is governed by the CBA. (Tr.
Metcalfe became president of FPN in late 2007, he pushed for
the development of a workforce rating system in an effort to
create a standardized, objective approach to evaluating and
improving the FPN workforce. (Tr. 1491:17-1492:7 (Metcalfe)).
Around February 2008, the field management team created a
chart called the “Manpower skills list, ” that
assigned each fitter a “weighted rank”-based on
ratings in 12 labor skills (i.e., “large
projects, ” high rise, ” “relocates,
” etc.) and seven soft skills (i.e., customer
relations, constructive communication, paperwork, etc.)-and a
number one through four indicating that individual's
value to the company. (JX22; Tr. 879:2-25, 880:1-881:6,
888:3-9 (Sullivan); Hebert (individual) Dep. Des. 142,
159-160). Acred, Waters and Barcik testified that speed and
productivity were factors considered in rating a fitters'
labor skills. (Tr. 1110:21-1112:8 (Acred); Tr.
1212:19-1213:14 (Barcik); Tr. 1836:7-11 (Waters)). On the
February 2008 chart, Martin received a weighted rank of
“81” out of a possible 160, and a value rank of
“3”; Truesdell received a weighted rank of
“84” and value rank of “3.” (JX22).
September 3, 2008, the field management team created the
“Field Rating System” chart, which ranked fitters
by letter grade. (Tr. 888:10-889:17, 897:1-4 (Sullivan);
JX21.) To create this chart, the field management team held
meetings and discussed each fitter's qualifications-for
example, certain skills in installation, experience with
different systems, attitude, etc.-and assigned rankings based
on that discussion. (Tr. 871:22-873:3 (Sullivan)). Metcalfe
sat in on the meetings but provided no input on the rankings.
(Tr. 872:9-10 (Sullivan); (Tr. 1155:10-13 (Barcik)). Hebert
also was involved in setting up the ranking systems but
provided no input on the evaluations. (Tr. 1301:6-14
(Hebert)). The field management team did not use a rubric,
scoring sheet, or any other written criteria to assign the
letter grades. (Tr. 872:11-873:3 (Sullivan)). Also, FPN did
not maintain lists of employees that identified specific
skills or experiences; therefore, the field management
team's discussions were based only on personal knowledge
from experience working with certain fitters. ((11/12/15
Acred 30(b)(6) Dep Des. 50:24-52:4)). Both Sullivan and Acred
testified that the field management team used the rankings in
the Field Ratings System chart to assist in layoff decisions
during the economic slowdown. (Tr. 888:10-889:17, 897:1-4
(Sullivan); Tr. 1085:20-1086:11 (Acred)). On the September
2008 chart, Martin received a B ranking and Truesdell
received a B ranking. (JX21.)
months later on January 9, 2009, the field management team
created yet another “Field Rating” chart. (DX10).
For each fitter, the chart reported the fitter's
“Position, ” as foreman, fitter, or apprentice; a
letter grade indicating the fitter's “Value”;
and a directional arrow indicating the fitter's
“Projection/Status”-i.e., an arrow
pointing up if the fitter's value was trending upward,
horizontally if being maintained and down if trending
downward. (DX10; Tr. 1303:7-19 (Hebert)). Acred testified
that this chart was also used in making layoff decisions.
(Tr. 1025:1-20, 1083:13-23; 1084:1-1085:18 (Acred); PX132;
DX10). The January 2009 chart listed both Martin's and
Truesdell's positions as foreman. (DX10). Martin received
a B- ranking with his status maintaining and Truesdell
received a B ranking with his status maintaining. (DX10). In
September 2009, FPN updated the letter grades in the
“Field Rating” chart. Martin's ranking
improved to a B and Truesdell's stayed at a B. (PX133).
not update or use the ranking charts after 2009. Hebert
testified that, as FPN developed its workforce, the
supervisors no longer needed to do an in-depth evaluation of
each individual fitter and the charts became irrelevant.
(Hebert (individual) Dep. Des. 156-157).
later around 2011 or 2012, the field management team created
a list of interview questions to highlight the criteria the
team considered when hiring a new fitter. (JX23; Tr.
1040:10-1043:11 (Acred); Tr. 1242:23-1243:23 (Barcik); Tr.
1801:1-11 (Waters); JX23). Acred testified that this list
reflected FPN's “new productivity
expectations.” (Tr. 1040:10-17 (Acred)). Among other
things, the list indicated that the team expected a fitter be
able to install a minimum 15 sprinkler heads in one day.
(JX23; Tr. 1041:24-1042:2, 11-12 (Acred); Tr. 1244:12-14
(Barcik); Tr. 1801:7-20 (Waters)). Barcik testified that the
standard has since increased and is now higher than 15
heads-per-day. (Tr. 1244:12-16, 1249:7-10 (Barcik)). Overall,
however, Acred admitted that FPN does not actually track
heads-per-day productivity by individual fitters. (Tr.
summary, FPN never had a consistent formal practice when it
came to hiring or evaluating performance. It is also clear
that hiring, transfer, and layoff decisions were made by the
superintendent with input from the field management and based
on the team members' familiarity with the fitters and
their availability. Because there were not objective,
consistent standards for evaluation, evidence comparing
fitters based on what little recording FPN did do was
basically meaningless. Of course, without objective
standards, FPN could have made its decisions based on bias
and discrimination but the timeline of the Plaintiffs'
careers simply do not support that.
Individual Plaintiffs' Careers
Plaintiff Kenneth Martin
Kenneth Martin, an African American sprinkler fitter, worked
for FPN or its predecessor in the late 1990s, from 2005 to
2009 and again for a few months in 2010. Martin first worked
at F.E. Moran Fire Protection starting in 1998. (Tr. 51:7-9
(Martin)). Martin was hired by then-foreman Sullivan, who
testified that as he recalls, Martin was “a very good
worker.” (Tr. 865:11-12 (Sullivan)). Martin similarly
testified that he and Sullivan had a “pretty
good” working relationship. (Tr. 51:7-52:9 (Martin)).
Sullivan hired Martin to work on a job for DisneyQuest-a job
which had no minority hiring requirement. (Tr. 51:19-52:2,
148:1-7 (Martin); Tr. 897:13-17 (Sullivan)). Martin testified
that he had been hired to replace a white fitter on the job
but then could not recall why he had replaced that fitter or
who at FPN had told him that. (Tr. 201:1-5, 222:11-224:17
(Martin)). Martin subsequently left his employment with F.E.
Moran Fire Protection, though he could not recall whether he
was laid off or left specifically to work for another
company. (Tr. 51:15-18, 148:1-149:3 (Martin)). Regardless,
after leaving Martin worked consistently as a sprinkler
fitter for other contractors. (Tr. 52:18-21 (Martin)).
2005, Sullivan, now superintendent, again hired Martin to
work for F.E. Moran Fire Protection and in 2006 promoted
Martin to foreman. (Tr. 52:14-53:15 (Martin)). From 2006 to
2009, Martin worked consistently, averaging 40 hours per
week; Sullivan transferred him from job to job and never laid
him off. (Tr. 54:9--55:3; 56:4-10 (Martin); Tr. 869:5-12
(Sullivan)). During Sullivan's tenure, FPN had ample job
opportunities for fitters, in particular at a series of
projects performed for DePaul University. (Tr. 887:8-14
(Sullivan); Hebert 30(b)(6) Dep Des. 195-196)). There were no
minority requirements on the DePaul jobs. (Tr. 897:18-20
and 2009, Martin worked as a foreman on the DePaul
O'Malley Lewis project, a retrofit job at two adjoining
high-rise buildings at DePaul's downtown campus. (Tr.
60:13-15, 61:14-15 (Martin); Tr. 920:10-12 (Acred); Hebert
30(b)(6) Dep Des. 195-196). Sullivan was the original
superintendent of the O'Malley Lewis project and assigned
Martin a minivan when Martin started as foreman on the
O'Malley Lewis project. (Tr. 65:14-15 (Martin); Tr.
920:1-4 (Acred); Tr. 1783:18-1784:5 (Waters)). The minivan
was not equipped with the same tools as a service truck,
which Martin never had. (Tr. 1978:1-9 (Waters)). Sullivan
assigned it to Martin as a sort of experiment and FPN never
assigned a minivan to any other fitter. (Tr. 1977:17-25
(Waters)). Acred took over as superintendent of the project
when Sullivan transferred roles in February 2009. (Tr.
920:5-9 (Acred)). As superintendent, Acred assisted Martin
whenever he had questions on the job and transferred Martin
to other jobs whenever there was a lull in work at the
O'Malley Lewis project. (Tr. 147:2-12, 156:1-13 (Martin);
DePaul jobs, including the O'Malley Lewis project, came
in under budget and were profitable for FPN. (Tr. 870:7-13
(Sullivan); Hebert (individual) Dep. Des. 40:7-11). Martin
believed he had performed well on the O'Malley Lewis
project because he had received only positive feedback and
the work had been completed in fewer hours than budgeted.
(Tr. 66:9-15 (Martin)). However, FPN attributes the success
of the DePaul projects to the bidding and not to the
contribution of the foremen like Martin. (Tr. 1325:5-16
(Hebert)). Acred, Hebert and Waters testified that the DePaul
jobs were bid with plenty of hours and, therefore, obtained
at a high margin from the outset. (Tr. 1050:10-18 (Acred);
Tr. 1325:7-16 (Hebert); Tr. 1830:18-22 (Waters)).
was laid off on September 10, 2009 when the O'Malley
Lewis job ended. (FPTO, Ex. 1 SOUF ¶ 19; PX25). There is
little evidence as to why or how Martin was laid off in 2009.
Martin testified that, after the O'Malley Lewis job, FPN
told him that they would call him when they found a job for
him but, after waiting and never receiving a phone call, he
assumed he had been laid off and filed for unemployment. (Tr.
218:21-219:8 (Martin)). Martin's layoff form reports the
explanation for his layoff as “lack of work” and
lists him as “eligible for rehire.” (PX25). Acred
testified that the decision to layoff Martin in 2009 was a
“group decision” among the field management team
but did not recall any conversations regarding the decision
to lay off Martin. (Tr. 922:1-16 (Acred)). Waters did not
recall anything about Martin's 2009 layoff. (Tr.
January 2010, Martin began working for another fire
protection company, Universal Fire Protection
(“UFP”). (Tr. 86:24-87:9 (Martin)). UFP, a
minority-owned company, hired Martin as foreman for the Boone
Clinton project, the construction of a new school for Chicago
Public Schools. (Tr. 86:10-87:25 (Martin)). Martin faced
several challenges beyond his control while working for UFP
on the Boone Clinton project including that UFP failed to
timely deliver pipes to the worksite and the pipes that were
delivered were poorly fabricated. (Tr. 90:13- 95:5 (Martin);
PX0023). These challenges caused delays in installation and,
ultimately, leaks in the sprinkler system installed. (Tr.
191:1-7 (Martin)). Martin recorded these issues in his daily
construction log. (Tr. 89:10-12, 90:3-22 (Martin); PX23).
took over the Boone Clinton subcontract in June 2010 after
UFP went out of business. (Tr. 94:6-10 (Martin); 11/11/15
Hebert 30(b)(6) Dep. Des. 122:3-21). By June 2010, the
project was about 75% complete but behind schedule; FPN
agreed to assist the general contractor “out of a
jam” in meeting its strict deadline in exchange for
potential “fortunate returns.” (Tr. 1324:6-14,
1350:11-21 (Hebert); PX200). Because UFP had already
installed much of the sprinkler system, FPN negotiated
provisions in its contract with the general contractor
stating that FPN agreed only to provide labor to assist in
completing the project and was otherwise not responsible for
any of UFP's contractual obligations and not liable for
the performance and reliability of the sprinkler system. (Tr.
1266:13-1269:2, 1327:11-1328:12 (Hebert); JX27).
recommended that Acred retain Martin as foreman for the Boone
Clinton for continuity purposes. (Tr. 1353:21-1354:9
(Hebert); PX200). Acred agreed and hired Martin as foreman.
(Tr. 1033:11-18 (Acred)). Hebert then submitted a schedule
for completing the job to the general contractor and
discussed this schedule with Martin. (Tr. 1323:25-1324:16
(Hebert); JX4). Hebert described the schedule as one FPN
“could easily meet” because it included added
“fluff” time for unexpected issues. (Tr.
1324:6-14 (Hebert)). The schedule budgeted 639 hours and
aimed for substantial completion by August 6, 2010. (JX4).
Martin completed the job on time in August 2010 but used
approximately 1, 360 hours of labor-more than double the
budgeted total. (Tr. 94:18-21 (Martin); JX34).
was laid off on August 9, 2010 when the Boone Clinton job
ended. (Tr. 94:20-95:16 (Martin); PX26). Again, Acred
testified that the decision to layoff Martin in 2010 was a
group decision among the field management team. (Tr.
932:24-933:4 (Acred)). Martin's 2010 layoff form reports
the explanation for his layoff as “lack of work”
and lists him as “eligible for rehire.” (PX26).
Following his layoff, Martin reached out to FPN a few times
to inquire about work: twice to Acred in September and
October 2010 and once by email to Hebert in December 2010.
(Tr. 99:18-101:2 (Martin); DX27). Acred responded both times
by saying that he had Martin's number and Hebert told
Martin that he would let the superintendents know of his
inquiry. (Id.) However, Hebert also testified that
following the Boone Clinton project, he would not have
recommended Martin to be a foreman. Hebert explained,
“I had a soft spot for Kenny . . . but business is
business and, you know, certain people possess certain skill
sets and other folks don't.” (Tr. 1343:21-1344:1
Martin's layoff, FPN had to fix six leaks in the Boone
Clinton sprinkler system. (DX27). Hebert testified that
Martin failed to notify FPN of any problems with the piping
until after he had been laid off. (Tr. 1322:7-15 (Hebert)).
However, it is reasonable to imagine based on the liability
releases FPN negotiated before taking the job that FPN at
least anticipated potential issues with the Boone Clinton
system, regardless of what Martin did or did not tell them at
his layoff, Martin enrolled in school at the Elim Outreach
Center and took classes to become a certified nurse
assistant, certified phlebotomist and dialysis technician.
(Tr. 42:12-23; 103:5-11, 205:25; 206:1-15 (Martin)). In 2010
and 2011, Martin attended school for nine to twelve months
and completed a one-month internship. (Tr. 206:8-15
(Martin)). Martin testified that he was still seeking
employment as a sprinkler fitter at this time but could not
recall whether he actually contacted any sprinkler fitter
companies regarding job opportunities during the period he
was in school. (Tr. 206:16-20 (Martin)). After completing
school, Martin worked as a patient care tech for DaVita
Dialysis Center from July 2011 until being discharged in
August 2012. (Tr. 103:22-104:35, 206:21-207:4 (Martin)).
Martin applied for jobs with several sprinkler fitter
contractors while working for DaVita and eventually found
employment. (Tr. 106:12-18, 111:15-25 (Martin)).
worked from 2005 to 2009 under Sullivan and then Acred,
during which time he was promoted and never laid off. The
industry began to slow in late 2008 and early 2009 and FPN
had fewer jobs. The last job Martin worked in 2009 was the
DePaul O'Malley Lewis project. When there was a lull on
that job, Acred transferred Martin to other jobs to keep him
busy. But when the O'Malley Lewis project ended, FPN had
no other jobs that needed additional fitters. FPN told Martin
they would call him if work became available but it never
did. Within a few months, Martin found work with UFP and was
not available for rehire by FPN. In 2010, UFP went out of
business and FPN took over some of their jobs including the
Boone County job. FPN kept Martin on as foreman of the Boone
County job for continuity's sake. FPN knew the Boone
County job had problems before taking it over and negotiated
releases of liability for any issues caused by UFP's
work. With Martin's help, FPN submitted a schedule and
labor cost estimate to finish the job. Martin completed the
job on time but far exceeded the labor hours budget, costing
FPN money. After Boone County, FPN laid off Martin and did
not transfer him to another job. Martin contacted FPN a few
times to inquire about work but was not rehired. Soon after
being laid off, Martin enrolled in school and never called
FPN again about work opportunities.
Plaintiff Aaron Truesdell
Aaron Truesdell, an African American sprinkler fitter, worked
for FPN or its predecessor from 2006 to 2009 and again for a
few months in 2010. Sullivan first hired Truesdell to work as
a journeyman fitter for F.E. Moran Fire Protection in spring
of 2006 and promoted Truesdell to foreman in summer of 2006.
(Tr. 322:16-19, 323:6-7, 20-23 (Truesdell); Tr. 868:11-15
(Sullivan)). Sullivan hired Truesdell because he had heard
Truesdell was a “very good fitter” and
“could run work.” (Tr. 868:7-10 (Sullivan)).
Sullivan considered Truesdell to be a responsible,
trustworthy worker with “very good” communication
skills that performed well on the jobs to which he was
assigned. (Tr. 868:17-869:4 (Sullivan)). Truesdell likewise
described Sullivan as an “excellent communicator”
and a “trusted” and “fair” supervisor
with whom he had a “very good” working
relationship. (Tr. 326:20-327:19 (Truesdell)).
his tenure as superintendent, Sullivan transferred Truesdell
from job to job and never laid him off. (Tr. 869:5-9
(Sullivan)). When no foreman positions were available,
Sullivan assigned Truesdell to jobs to assist on jobs as a
journeyman. (Tr. 328:20-329:10 (Truesdell)). When Acred
became superintendent in 2009, he also transferred Truesdell
to various jobs both as foreman and as journeyman and when
Truesdell worked as journeyman, he maintained his foreman
wage rate. (Tr. 328:20-329:10, 398:25-399:6, 450:8-16
2006 and 2009, Truesdell worked as a foreman on projects for
DePaul and the Chicago Mercantile Exchange (CME). On the
DePaul O'Malley Lewis project, Martin was head foreman
but Truesdell ran the night crew as foreman two or three
times when they worked through the day and night. (Tr.
329:11-22 (Truesdell)). As foreman on the CME project, an
add/relocate job on two floors of the building, Truesdell
oversaw six to ten fitters at any time. (Tr. 329:23-330:11
(Truesdell)). Both projects were profitable for FPN. (Tr.
330:12-23 (Truesdell); Tr. 1403:10-24 (Metcalfe); Hebert
(individual) Dep. Des. 33:2-19)). Neither had any minority
hiring requirements. (Tr. 897:18-20 (Sullivan); Tr. 1220:4-5
(Barcik)). During a foreman meeting in 2009, Metcalfe singled
Truesdell out for good performance, praising him for his
“excellent” work on the CME job and noting that
the job was “very profitable for the company.”
(Tr. 330:12-23 (Truesdell); Tr. 1403:10-24 (Metcalfe)).
Chase Bank project in downtown Chicago was Truesdell's
last job before being laid off in 2009. There were no
minority hiring requirements for the job. In July 2009, Acred
transferred Truesdell to the Chase Bank job to replace a
white fitter, Randy Iverson, as foreman. (Tr. 334:10-24,
410:15-411:1 (Truesdell); JX34). Acred testified that he
would not remove the foreman on a job as it was winding down
unless the foreman was not performing. (Tr. 1047:8-11
remained on the job until it was complete at the end of July.
(Tr. 334:14-18, 335:16-17 (Truesdell)). Upon completing the
job, Truesdell went on a 10-day vacation to California which
he had cleared with his supervisors. (Tr. 335:16-24,
336:19-21 (Truesdell)). When he returned, Waters informed him
that he was being laid off. (Tr. 334:24-335:12 (Truesdell)).
Truesdell felt “blindsided and hurt” and
“stunned.” (Tr. 336:13-337:19 (Truesdell)).
Truesdell admitted that, to his knowledge, there were no job
opportunities at FPN for fitters the time of his layoff in
2009. (Tr. 337:20-23 (Truesdell)).
his 2009 layoff, FPN tried to rehire Truesdell twice but he
declined. Truesdell began working as a sprinkler fitter at
UFP around late October or November 2009. (Tr. 340:15-22
(Truesdell)). In December 2009, Waters called Truesdell and
asked if he would be interested in a job opportunity at FPN.
(Tr. 344:12-345:2 (Truesdell)). Truesdell told Waters he was
working for UPN and appreciated the offer but declined. (Tr.
344:23-345:2 (Truesdell)). In February 2010, Barcik called
Truesdell again about returning to work for FPN. (Tr.
345:3-18 (Truesdell); Tr. 1138:15-21 (Barcik)). Barcik told
Truesdell that he could take a couple of weeks to decide.
(Tr. 345:8-18 (Truesdell)). Barcik testified that it was
unusual for him to reach out to fitters about work and that
he could not remember any other instance when he did so. (Tr.
1139:1-9 (Barcik)). Truesdell did not immediately accept the
job. He explained that the owner of UPN was a minority and he
wanted to give him a “fair shake” because, being
a minority himself, he would have taken pride in helping to
make the business a success. (Tr. 345:19-25 (Truesdell)).
FPN's attempts to rehire Truesdell were not related to
any minority hiring requirement. (Tr. 1222:19-22 (Barcik)).
Acred testified that Truesdell had an “open
invitation” to return to FPN. (Tr. 1053:25-1054:7
eventually contacted Barcik to accept the offer in April
2010, in part out of concern for UPN's financial
condition. ((Tr. 346:10-25; 347:1-7, 415:3-21 (Truesdell)).
FPN rehired Truesdell as a journeyman within a week or two
and assigned him to the Lee Pasture job, a new construction
Chicago Public School on the 4700 block of West Marquette
Road. (Tr. 347:8-18, 396:11-13, 415:22-24 (Truesdell)).
Although several FPN witnesses testified that the Lee Pasture
job had no minority hiring requirement, the subcontract and
other documents suggest that it did. (PX146; PX162; PX163.)
Acred was the superintendent on the Lee Pasture job and
promoted Truesdell to foreman after the previous foreman, a
white fitter named Bill Cartright, was removed for poor
performance. (Tr. 412:18-413:25 (Truesdell); Tr. 935:4-6,
1054:8-1055:11 (Acred); Tr. 1221:12-17, 1222:8-15 (Barcik)).
At that point, the Lee Pasture job was pretty far along. (Tr.
the Lee Pasture job, Truesdell worked at the Matteson
Community Center, a recreation center in Matteson, Illinois,
near where Truesdell lived in Park Forest and, therefore, was
convenient for Truesdell to get to work. (Tr. 350:6-20,
379:25-380:5, 455:21-456:1 (Truesdell)). The Matteson job had
a minority hiring requirement. (PX315; FPTO, Ex. 1 SOUF
¶ 46). Following the Matteson job and for the majority
of the summer of 2010, Acred assigned Truesdell to work as
foreman on a Walmart job in Chicago's Austin
neighborhood. (FPTO, Ex. 1 SOUF ¶ 43; PX139; PX286). The
Walmart subcontract did not include a minority requirement;
however, certain communications suggest FPN nonetheless
committed to provide 50% minority labor. (Tr. 1331:22-1332:20
(Hebert)); Tr. 1058:22-24 (Acred); Tr. 1819:7-17, 1821:12-25
(Waters); JX26; PX139; PX155.)
Walmart job involved a buildout of an existing store and
proceeded in three phases, the last of which was the largest
and made up the bulk of the work. (Tr. 353:7-18, 355:8-9
(Truesdell)). As foreman, Truesdell attended weekly foreman
meetings in which the general contractor discussed the
schedule and expected pace for the job. (Tr. 325:21-326:2,
357:1-10, 358:13-16 (Truesdell)). Truesdell worked to
complete the Walmart job on schedule. (Tr. 358:17-22
(Truesdell)). He completed the first phase on his own and
requested assistance on the second phase; Acred provided an
apprentice. (Tr. 355:15-355:6 (Truesdell)). Truesdell took
his regular vacation in August and FPN fitter Ignacio Torres
filled in while he was gone. (Tr. 356:4-13 (Truesdell)). When
he returned, Truesdell requested additional help for the
third phase. Given the scope of the work and the general
contractor's schedule, he believed he needed at least two
journeymen to assist him and the apprentice. (Tr.
356:13-358:12 (Truesdell)). Acred agreed that Torres could
remain on the job but assigned no one else. (Tr. 358:19-22
the end of the third phase, Acred approached Truesdell for
the first time about number of hours worked on the job and
expressed concern that the hours were running out. (Tr.
358:23-360:13, 417:8-25 (Truesdell)). Neither Acred nor
anyone else at FPN ever complained that Truesdell did
unauthorized work outside the scope of the job. (Tr.
360:21-361:2 (Truesdell)). The total hours worked on the
Walmart job nearly doubled the budgeted hours. (Tr. 1062:3-20
(Acred)). Acred blamed the hours issues on the salesperson
for underbidding the job and on the foreman for failing to
track hours and be efficient. (Tr. 1062:3-20, 1107:6-21
(Acred)); Tr. 1820:22-1821:7 (Waters)). Acred laid off
Truesdell on September 29, 2010, the day he was scheduled to
finish the Walmart job, for lack of work. (Tr. 352:23-25;
367:16- 25; 368:11-15 (Truesdell); Tr. 1064:10-14 (Acred);
JX19). Truesdell's Notice of Termination indicates that
he was eligible for rehire and that FPN had not needed to
hire anyone to replace him. (JX19; Tr. 457:6-25, 458:1-3
(Truesdell)). FPN had no jobs to transfer him to at the time
of his layoff. (Tr. 1814:9-12 (Waters)). FPN also fired the
sales representative from the Walmart job.
held an After-Action meeting in October 27, 2010 to discuss
and create a report documenting various failures on the
Walmart job. (Tr. 937:14-21, 1060:21-25; 1061:1 (Acred); Tr.
1758:23-25, 1759:1-2, 1814:3-8, 1823:9-18 (Waters); JX29).
FPN only conducts After-Action meetings for projects that go
“really bad.” (Tr. 1060:16-1061:20 (Acred)). The
After-Action Report listed the issues that contributed to the
“failure” of the Walmart project and included
four main categories: (1) “Turnover, ” (2)
“No designer assigned to project, ” (3)
“Wrong foreman running project, ” and (4)
“lack of leadership.” (JX29). Under the third
category, the report states that there was “poor
communication” and that the foreman “didn't
care about the hours” and “continual [sic] did
work outside of scope, without authorization.” (JX29;
Tr. 1061;16-1062:2 (Acred); Tr. 1823:9-1824:1 (Waters)). The
Report also blamed the salesperson' inexperience and
failure to properly communicate the scope of the project when
turning it over to the field management team as well as the
lack of phasing schedule and designer. (JX29; Tr.
937:22-938:10 (Acred)). Metcalfe testified also that Walmart
was one of the most difficult clients FPN ever worked with.
(Tr. 1525:25-1526:2, 1526:20-1528:2 (Metcalfe)).
testified that he was still interested and available for work
following his 2010 layoff. However, Truesdell also admitted
that he never contacted a supervisor or anyone else at FPN
for work until 2012 when he returned a phone call from
Waters. (Tr. 372:6-22, 420:16-421:4; 453:17- 454:6
(Truesdell)). Truesdell never had a service truck during his
employment with FPN. (Tr. 1805:4-6 (Waters)).
worked from 2006 to 2009 under Sullivan and then Acred,
during which time he was promoted and never laid off. Both
Sullivan and Acred transferred Truesdell to work as a
journeyman on jobs when no foreman jobs were available and
allowed him to maintain foreman pay. The last job he worked
in 2009 was at Chase Bank. When the job ended, FPN could not
have transferred him because Truesdell immediately went on a
ten-day vacation. When Truesdell returned, there were no jobs
available and he was laid off. Following his 2009 layoff,
Truesdell did not reach out to FPN about rehire; in fact,
between December 2009 and April 2010, Truesdell declined
FPN's offers to return. Truesdell eventually accepted the
offers for rehire. Upon return, he worked as foreman on the
Walmart project which FPN considered a “failure.”
Truesdell was laid off and not transferred after the Walmart
ended. Following his 2010 layoff, Truesdell never contacted
FPN for work other than returning Waters' phone call in
2012. Truesdell never made any internal complaints of hearing
race-based comments or of unfair or unequal treatment. He
also testified that other than his 2009 layoff, Truesdell
never felt like he was being treated unfairly by anyone
including Scott Acred. (Tr. 392:19-22, 404:16-18, 411:3-5
Plaintiff Johnny Tejada
Johnny Tejada, a fitter of Panamanian ancestry who identifies
as African American, worked for FPN for a few months in 2010.
Before working for FPN, Tejada worked for two years for UFP
and was not laid off at any point during that time. (Tr.
758:22-759:4 (Tejada)). UFP promoted Tejada from journeyman
to foreman and assigned him as the original foreman to the
Adam Clayton Powell School project. (Tr. 762:4-12, 763:6-7
(Tejada)). Tejada waived the higher foreman's wage rate
and accepted the journeyman pay rate on the Powell School job
because UFP was having financial issues at the time; he was
not aware of any other foreman that did the same. (Tr.
764:23-765:9, 808:17-18 (Tejada)). UFP went out of business
before the Powell School project was completed. (Tr. 766:1-9
took over the Powell School project from UFP near the end of
June 2010. (JX24; PX215). The job stood stagnant for a few
weeks and then started up again in early July. (Tr. 766:1-9
(Tejada)). When FPN took over, Sollitt, the general
contractor on the job, recommended that Acred reach out to
Tejada about continuing to work on the project for FPN. (Tr.
1142:21-25 (Barcik)). Acred hired Tejada on June 28, 2010 but
assigned Eric Woolwine to take over as foreman on the Powell
School job. (Tr. 1065:21-25 (Acred); Tr. 772:17-773:2
(Tejada); Tr. 1337:8-1339:6 (Hebert); JX25.) After being
hired, Tejada worked for a short period on the Boone Clinton
project under Martin, who was foreman on the job, until the
Powell School job started again. (Tr. 814:2-13; 815:2-816:2
testified that, when he was hired, he knew FPN planned to
assign another fitter to the Powell School job but assumed he
would continue as foreman. (Tr. 769:21-770:19, 816:24-817
(Tejada); PX71). He testified also that he was not aware of
any minority hiring goals or requirements on the Powell
School job and did not feel that FPN was obligated to hire
him based on his race. (Tr. 817:6-15, 825:11-13 (Tejada)).
Indeed, Hebert negotiated any EEO minority goals and
requirements out of the agreement with Sollitt when FPN took
over the project from UFP. (Tr. 1333:15-21 (Hebert); PX0215).
Hebert told Sollitt that FPN would “try to
assist” with minority requirements but maintained that
FPN would not assume liability or accept any penalties if
they were not met. (JX24). Hebert negotiated other exclusions
as well, including any warranty for work installed by UFP
prior to FPN taking over. (PX215; Tr. 1332:22-1335:9
and Woolwine worked together on the Powell School job for two
to three months. (Tr. 774:12-14 (Tejada)). There were never
any complaints about Tejada's work on the job but
Woolwine was the more productive of the two. (Tr. 774:18-20
(Tejada); Tr. 942:18-943:5 (Acred)). Tejada installed around
15 heads per day with Woolwine laying out the pipe to assist.
(Tr. 1225:9-22 (Barcik)). Meanwhile, Woolwine, who ...