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Ward v. Board of Education of City of Chicago

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

April 30, 2018

CARL WARD, Plaintiff,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant.

          OPINION AND ORDER

          JOAN H. LEFKOW, U.S. DISTRICT JUDGE

         Carl Ward filed a single-count complaint against his former employer, the Board of Education of the City of Chicago, alleging unlawful employment discrimination based on retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq. The Board has moved for summary judgment. For the reasons set forth below, the motion is granted.[1]

         BACKGROUND[2]

         Ward became employed by the Board on July 30, 2007. From November 8, 2010 until his termination on November 15, 2013, he held the position of Engineer II at Emmett Louis Till Math and Science Academy (“Till”). Charles Asiyanbi was the principal of Till (“the Principal”) throughout Ward's time at Till. The Principal supervised and was responsible for reviewing Ward's performance. His direct supervisor was Juan Miranda.

         Ward was evaluated for the 2011-2012 school year and received a rating of “Fair.”[3] As explained in the marginal note, the court finds it established for purposes of this motion that Ward was evaluated and was aware of the 2011-2012 performance rating. He was also evaluated for the 2012-2013 school year but may not have known of the 2012-2013 rating until after he was no longer employed by the Board.[4]

         The Board's Employee Discipline and Due Process Policy (“the Policy”) sets forth the discipline and discharge procedures for all school-based employees. It provides, as relevant here, that “[p]rior to the issuance of discipline against a School-Based Educational Support Personnel [as relevant here, the Principal] shall issue a Cautionary Notice to the School-Based Educational Support Personnel, unless deemed not practical such as in cases involving egregious or serious rules violations.” A cautionary notice is defined as “[a] non-disciplinary written statement to an employee advising him that the described misconduct is unacceptable and will lead to formal discipline if repeated.”

         On July 20, 2012, Ward received four cautionary notices based on incidents that occurred between April 17, 2012 and July 20, 2012.[5] The first, dated April 18, 2012, faulted Ward for being inattentive to duty and intentionally failing to manage or supervise staff on April 17, 2012. Certain photographs attached to the notice, presumably intended to show the deficiencies, in Ward's opinion demonstrate that the areas photographed were clean and orderly and that Ward had discharged his duties adequately.[6]

         A cautionary notice dated June 1, 2012 asserted that Ward “continues to be absent” and advised Ward to attend work every day except in cases of extreme emergency and to notify the Principal when absent. Ward's attendance records submitted by the Board along with the cautionary notice (but presumably not attached to the notice because the dates extend beyond July 20, 2012) do not reflect any absences other than three vacation days and two sick days taken during the preceding month or, for that matter, any other apparently unauthorized absences between January 1, 2012 and July 26, 2012.[7] Although Ward's Affidavit denies that his attendance was faulty, Ward admitted during his deposition he had been absent “maybe twice” between May 1 and July 20 and had been one hour late at least one time. (Dkt. 59-1 at 63-64). The testimony is credited over the Affidavit.

         A cautionary notice dated June 6, 2012 cited Ward for insubordination, incompletely or inefficiently performing duties, and intentionally failing to manage or supervise staff, all on June 6, 2012. Ward asserts that the accusations were unfounded. A notice dated July 20, 2012 accused Ward of leaving work 30 minutes early on July 19, 2012, negligently failing to carry out a rule, order or directive, leaving his duty assignment without permission, insubordination, violation of school rules, and repeated or flagrant acts of “Group 3 misconduct.”[8] Ward admitted in his deposition that he left work early on July 19.[9]

         On October 30, 2012, the Principal confronted Ward while he was attempting to sign out early. In the ensuing conversation, according to the Principal, Ward yelled at him using words to the effect of “I'm leaving, see you, write it up, fuck you!” and “You heard what I said. I'm tired of this motherfucker.” Immediately following this “October Incident, ” the Principal reported to Thomas Krieger, Assistant Director of Employee Engagement, that Ward had “directed verbally abusive and profane language toward the principal and exhibited gross insubordination.” The Principal requested that Ward be removed from Till. According to Ward, the Principal, not he, had used the objectionable language and falsely accused Ward.[10]

         Ward was notified by letter dated November 14, 2012 that he was to be suspended immediately with pay pending the outcome of a pre-suspension hearing to address the Principal's allegations regarding the October Incident. The hearing took place on December 5, 2012. Ward's union representative asserted Ward's denial of the accusations and urged that he remain in pay status until an investigation had been completed. The Deputy General Counsel, James Ciesil, requested that Ward be suspended without pay.[11] The CEO of Chicago Public Schools, Barbara Byrd-Bennett, accepted Kreiger's recommendation and Ward was notified in a letter dated December 14, 2012 that he was to be suspended without pay, effective December 18, 2012.

         On January 30, 2013, Ward filed a charge of discrimination (“First Charge”) with the Illinois Department of Human Rights (automatically cross-filed with the EEOC) alleging discrimination “during” his employment based on his race, color, age, and national origin.

         On February 11, 2013, the Board assigned the Law Department's Investigation Unit to investigate the October Incident. Ward was informed on March 28, 2013 that he would be reinstated to pay status retroactive to March 12, 2013 but would remain suspended until the pending charges were resolved. On April 17, 2013 the Law Department issued an Investigative Memorandum finding credible evidence to support the allegation that on October 30, 2012 Ward signed out early and made the statements attributed to him by the Principal. A recommendation that Ward be discharged was conveyed to the CEO, who approved it. This led to a July 12, 2013 notice to Ward of specific “Charges and Specifications”. A discharge hearing was set for July (but later continued).

         Meanwhile, for reasons arising from budget shortfalls, the Board closed 50 schools at the end of the 2012-2013 school year. This resulted in a staffing surplus of engineers. Later, the Board's Office of Management and Budget determined ...


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