United States District Court, N.D. Illinois, Eastern Division
HONORABLE THOMAS M. DURKIN DISTRICT JUDGE.
Ricardo Gomez brings this lawsuit against the City of Chicago
(the “City”) alleging a hostile work environment
under Title VII of the Civil Rights Act of 1964. The City
moved for summary judgment. R. 64; R. 72. For the reasons
set forth below, the Court grants the City's motion.
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The Court
considers the entire evidentiary record and must view all of
the evidence and draw all reasonable inferences from that
evidence in the light most favorable to the nonmovant.
Horton v. Pobjecky, 883 F.3d 941, 948 (7th Cir.
2018). To defeat summary judgment, a nonmovant must produce
more than a “mere scintilla of evidence” and come
forward with “specific facts showing that there is a
genuine issue for trial.” Johnson v. Advocate
Health and Hosps. Corp., 892 F.3d 887, 894, 896 (7th
Cir. 2018). Ultimately, summary judgment is warranted only if
a reasonable jury could not return a verdict for the
nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
following facts are undisputed unless otherwise noted.
Ricardo Gomez is a Puerto Rican/Hispanic firefighter who
began training with the City of Chicago Fire Department
(“CFD”) in May 2005 and has worked in that
capacity ever since. R. 73 ¶¶ 1, 4. Gomez was
initially assigned to Engine 57 located at 1244 North Western
Avenue before his transfer to Engine 110 at 2322 West Foster
Avenue in or around November 2010. Id. ¶¶ 5,
2012 note and investigation. According to
Gomez, on or about January 28, 2012 and while at Engine 110,
a form completed by CFD personnel to request a transfer to
another firehouse with the word “spic” written on
it fell out of his locker. Id. ¶ 7. Gomez was
familiar with the CFD's General Orders
(“G.O.'s”) and with the policies concerning
discrimination, harassment and reporting. Id. ¶
12. G.O. 93-018, effective at that time, expressly prohibited
“[d]iscrimination and/or harassment on the basis of
race, color, religion, sex, national origin, age, ancestry,
” and promised that “[t]he department takes each
and every complaint of discrimination and/or harassment
seriously, ” and that each one would be
“thoroughly investigated.” Id.
¶¶ 8, 10. G.O. 93-018 allowed employees to file a
complaint of discrimination or harassment in multiple ways,
including by notifying department supervisors or through the
appropriate grievance procedure, and provided that a
complaint received by supervisors would
“confidentially” and immediately be forwarded to
the appropriate Deputy Fire Commissioner, who would in turn
designate an investigator. Id. ¶ 11.
with G.O. 93-018, Gomez reported the note to his superior
officer, Lieutenant Kevin Peters. Lt. Peters in turn reported
it to Battalion Chief Joseph Santucci that same
Id.; R. 82-2 ¶ 20. And Lt. Peters read G.O.
93-018 to Gomez, and then to all employees present at Engine
110 that day, indicating while referencing its provisions
that any harassment was prohibited and would not be
tolerated. R. 73 ¶ 8.
Chief Santucci immediately prepared an incident report,
ultimately causing the Internal Affairs Division to open an
investigation. Id. at 13. During the investigation,
Gomez alleged that he had received other (blank) transfer
forms while at Engine 110: in his work boots in May 2011; in
his locker in October 2011; and in his work coat in January
2012. He also reported that he found a water bottle in his
work boots in January 2012. Id. ¶ 14. Gomez had
not reported these or any other incidents previously.
Id. ¶ 15. Gomez complained to investigators
that he “didn't feel like part of the clique,
” and that neither the Caucasian firefighters nor
Hispanic engineer Alfredo Ruiz spoke to him. R. 82-2 ¶
4; R. 73 at Ex. L, p. 2-3. Gomez was interviewed twice in
February 2012 and a third time in October 2012. R. 73
¶¶ 18, 19. The IAD investigator gave Gomez her
business card and advised him multiple times over the course
of the investigation that he could contact her at any time.
But Gomez made no further complaints. Id.
addition to interviewing Gomez, the IAD investigator also
interviewed Battalion Chief Santucci and Lt. Peters once
Santucci returned from medical leave in September 2012.
Id. ¶ 19. And during the weeks following
Gomez's report, Lt. Peters spoke to all Engine 110
firefighters, including minority firefighters with Hispanic
surnames. None had experienced any racially offensive,
harassing or derogatory conduct. Nor had any witnessed other
firefighters treating Gomez in an offensive or racially
discriminatory manner. Id. ¶ 9.
requested a transfer out of Engine 110 on or about February
12, 2012. He was thereafter permitted to work temporarily at
other engines, and was transferred to Engine 89 at 3945 West
Peterson Avenue on a permanent basis in April 2012.
Id. ¶ 17. The IAD closed its investigation in
January 2013 without taking further action. Id.
¶¶ 20, 21.
2014 note and investigation. On or about April
27, 2014, more than two years after his January 2012 report
and while still assigned to Engine 89, Gomez showed his
commanding officer Lt. Ted Maj a transfer form that he
alleged fell out of his equipment that day. On it were the
handwritten words “get out and swim back to your sh*t
hole.” Id.¶ 22. Approximately one year
before, the CFD had rescinded G.O. 93-018 and adopted in its
place G.O. 13-006, entitled “Discrimination/Harassment
Investigation Policy and Procedures.” G.O. 13-006
incorporated the City's Diversity and Equal Employment
Opportunity Policy (“EEO Policy”), the purpose of
which was to “provide [City employees] an effective
means for the resolution of complaints of discrimination and
harassment.” Id. ¶¶ 25, 26. An
employee can file a complaint of discrimination, harassment
or retaliation under G.O. 13-006 and the EEO Policy by
notifying “CFD supervisors, CFD's EEO Liaison (the
Deputy Commissioner of CFD Human Resources), City of Chicago
Department of Human Resources, ” or by union grievance.
Id. ¶ 27 and Ex. U, p. 2. Unlike G.O. 93-018,
G.O. 13-006 and the EEO Policy it adopts specifies that the
EEO Division shall initiate and direct the investigation, and
that supervisors who become aware of conduct that may violate
the EEO Policy must report it to “a Department Liaison,
or to the EEO Officer or EEO Deputy” or face potential
discipline. Id. at Ex. U, p. 2 and Ex. T, p. 4-5.
informed everyone present at the morning call that day about
the note, and reiterated that discrimination would not be
tolerated while reviewing the relevant anti-harassment and
discrimination policies. Id. ¶ 22 and Ex. O, p.
2-3. He interviewed almost all of Engine 89's members.
None admitted to leaving the note. Id. ¶ 22.
Lt. Maj also informed his commanding officer, Captain
Curley-Battalion Chief Kurt Nelson's reliever-about the
note, and notified Battalion Chief Nelson when he returned to
Engine 89 on or about April 30. That same day, Battalion
Chief Nelson informed Deputy District Chief Hoyle Marshall
and Assistant Deputy Fire Commissioner Mark A. Nielsen about
the note, and forwarded Gomez's complaint to CFD's
Internal Affairs Division. Id. ¶¶ 23, 24,
28. Five days later on May 5, 2014, Assistant Commissioner
for the Internal Affairs Division Steven M. Malec notified
EEO officer Abel Leon-who oversaw the EEO Division
investigations at the time- of Gomez's complaint.
Id. Gomez was then transferred to Engine 86 at 3918
North Harlem Avenue in May or early June 2014. Id.
at Ex. X, p. 3.
Division commenced its investigation on June 18, 2014 by
telephoning Gomez to clarify his allegations. Gomez was
interviewed in person the next day. R. 73 ¶¶ 29,
30. During the interview, Gomez told investigators that he
suspected that David Comiskey-a Caucasian fellow firefighter
of the same rank- wrote the note, and reported for the first
time that Comiskey also swore at him and was
“derogatory and belittling.” Id.
¶¶ 31, 32, 33. According to Gomez, Comiskey never
referenced Gomez's nationality or ethnicity when he swore
at him, and Gomez would respond either by ignoring Comiskey,
or swearing back. Id. ¶ 33. Gomez also
complained that Comiskey singled him out for wearing casual
clothes, but could not recall complaining about it
previously. Id. ¶ 47. Gomez told the