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Gomez v. City of Chicago

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

June 14, 2019

Ricardo Gomez, Plaintiff,
City of Chicago, Fire Department Defendant.



         Plaintiff 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.[1] For the reasons set forth below, the Court grants the City's motion.


         Summary 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).


         The 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.[2] Id. ¶¶ 5, 6.

         The 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.

         Consistent 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 day.[3] 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.

         Battalion 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.

         In 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.

         Gomez 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.

         The 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.

         Lt. Maj 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.

         The EEO 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. ΒΆ 47. Gomez told the ...

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