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Martin v. F.E. Moran, Inc.

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

March 30, 2018

KENNETH MARTIN, et al., Plaintiffs,
v.
F.E. MORAN, INC. FIRE PROTECTION OF NORTHERN ILLINOIS, Defendant.

          MEMORANDUM OPINION AND ORDER

          HON. VIRGINIA M. KENDALL STATES DISTRICT JUDGE.

         Plaintiffs 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.)

         On 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.)

         The 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.

         FINDINGS OF FACT

         I. FPN Organization

         FPN 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)).

         Alan 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 (Metcalfe)).

         Superintendents 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)).

         Some 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. 1911:25-1912:5 (Waters)).

         Edward 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. 1405:21-1406:2 (Metcalfe)).

         Sullivan 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.

         Sullivan 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)).

         When 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.[1] (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)).

         II. Collective Bargaining Agreement and the Local 281

         At all 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)).

         There 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).

         Local 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 (Tejada)).

         The CBA 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)).

         Local 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 (Waters)).

         III. FPN Hiring Practices

         A. The Hiring Process Generally

         FPN 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)).

         Superintendents 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)

         When 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)).

         At the 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)).

         Sullivan 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)).

         Acred 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 (Martin)).

         FPN 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.

         Armon's 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. Des. 9:2-10:10).

         Metcalfe 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. 1215:25-1216:2 (Barcik)).

         B. The Great Recession

         The 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)).

         There 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)).

         Yet, 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.

         C. Performance Evaluations

         Due to 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. 1313:18-1319:4 (Hebert)).

         When 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).

         In 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.)

         A few 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).

         FPN did 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).

         Years 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. 1110:16-20 (Acred)).

         In 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.

         V. Individual Plaintiffs' Careers

         A. Plaintiff Kenneth Martin

         Plaintiff 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)).

         In 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 (Sullivan)).

         In 2008 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); JX32.)

         The 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)).

         Martin 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. 1784:23-1785:6 (Waters)).

         In 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).

         FPN 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).

         Hebert 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).

         Martin 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 (Hebert)).

         After 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 that time.

         Following 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)).

         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.

         B. Plaintiff Aaron Truesdell

         Plaintiff 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)).

         During 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 (Truesdell)).

         Between 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)).

         The 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 (Acred)).

         Truesdell 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)).

         After 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 (Acred)).

         Truesdell 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. 1222:13-15 (Barcik)).

         After 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.)

         The 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 (Truesdell)).

         Toward 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.

         FPN 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)).

         Truesdell 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)).

         Truesdell 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 (Truesdell)).

         C. Plaintiff Johnny Tejada

         Plaintiff 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 Tejada)).

         FPN 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 (Tejada)).

         Tejada 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 (Hebert)).

         Tejada 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 ...


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