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Vovilla v. Illinois Department of Human Services

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

July 9, 2019



          Gary Feinerman Judge.

         Keith Vovillia brings this suit against his former employer, the Illinois Department of Human Services (“IDHS”), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that he was (1) subjected to a hostile work environment because of his race and (2) reassigned, suspended, and ultimately put on leave in retaliation for complaining internally and to the Equal Employment Opportunity Commission (“EEOC”) about racial harassment. Doc. 7. With discovery concluded, IDHS moves for summary judgment. Doc. 35. The motion is granted in part and denied in part.


          The following facts are set forth as favorably to Vovillia, the nonmovant, as the record and Local Rule 56.1 permit. See Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018). On summary judgment, the court must assume the truth of those facts, but does not vouch for them. See Donley v. Stryker Sales Corp., 906 F.3d 635, 636 (7th Cir. 2018).

         Vovillia, a white man, started working for IDHS as a Mental Health Tech Trainee at the Ann M. Kiley Center in May 2010. Doc. 41 at ¶¶ 3, 5. In 2011, he was promoted to Mental Health Tech I and assigned to one of the Kiley Center's homes for people with developmental disabilities, where his responsibilities included cooking and cleaning for the residents and “basic teaching” duties. Id. at ¶ 7. His direct supervisor was Tawana Jackson, who was a Mental Health Tech II or III, and his next-level supervisor was Lisa Burton, the program coordinator. Id. at ¶ 9. In 2015, Vovillia was promoted to Mental Health Tech II, and Burton became his direct supervisor. Id. at ¶¶ 8-9; Doc. 37-2 at 5-6.

         A. December 2014 UER

         On December 28, 2014, Vovillia submitted an Unusual Event Report (“UER”) to Desiree Anderson, a residential shift supervisor, reporting that coworkers were calling him a “racist” and a “rapist” and saying that he had a “little dick.” Doc. 41 at ¶¶ 13-14. No. Kiley Center employees had previously made derogatory comments to Vovillia. Id. at ¶ 13; Doc. 37-2 at 7. Vovillia told Anderson that he was not comfortable telling her who made the comments. Doc. 41 at ¶ 14. Anderson referred Vovillia's report to Melissa Calhoun, who in turn referred it for an internal investigation. Id. at ¶¶ 14-15.

         Internal security investigator Larry Dolan conducted the investigation. Id. at ¶ 15. When Dolan interviewed Vovillia on December 28, Vovillia was vague and evasive and not answering questions. Ibid. After Dolan told Vovillia that he was going to terminate the interview, Vovillia showed Dolan his cell phone, where he had documented the statements he claimed his coworkers had made to him. Ibid. Specifically, Vovillia reported that Daryle Pearson called him a “perv” and an “asshole, ” that Eddie Barnes told him that he is a “murderer” and likes to “kiss babies, ” that Shalanda Handy told him he has a “little dick for kids, ” and that Jeffery Johnson and Marshall Bell told him that he was going to jail for rape. Id. at ¶ 16.

         In response to Vovillia's UER, IDHS reassigned everyone involved; Vovillia was assigned to a position packing, stocking, and loading food in a warehouse. Id. at ¶ 17; Doc. 74 at ¶ 11; Doc. 37-2 at 12, 37; Doc. 37-6 at 6. IDHS's procedure during an investigation was to reassign employees involved in workplace disputes to positions other than home assignments, so as to avoid further conflict that could affect residents. Doc. 41 at ¶ 18; Doc. 37-2 at 22. Every time Vovillia made a complaint about harassment, both he and the coworkers he complained about were removed from home assignments and assigned to different positions. Doc. 41 at ¶ 19; Doc. 37-2 at 22. After the investigation of the December 2014 UER concluded, Vovillia was returned to a home assignment. Doc. 41 at ¶ 17; Doc. 37-2 at 22. (Vovillia's Local Rule 56.1(b)(3)(B) response disputes ¶¶ 17-19 of IDHS's Local Rule 56.1(a)(3) statement on the ground that the factual assertions therein are “misleading, ” Doc. 41 at ¶¶ 17-19; in support, Vovillia cites ¶ 11 of his Local Rule 56.1(b)(3)(C) statement of additional facts, which characterizes his reassignment as retaliatory, Doc. 74 at ¶ 11. Because the challenged factual assertions are supported by the cited materials and are not controverted by Vovillia's characterization of their legal significance, the assertions are deemed admitted. See N.D. Ill. L.R. 56.1(b)(3)(C) (“All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.”).)

         As part of its investigation into the December 2014 UER, IDHS obtained written witness statements from Pearson, Barnes, Handy, Johnson, and Bell. Doc. 41 at ¶ 20; Doc. 37-8. All five denied saying anything threatening to Vovillia or seeing anyone else harass him. Doc. 41 at ¶ 20; Doc. 37-8 at 3, 7-10, 17-18, 21-22. (Vovillia's Local Rule 56.1(b)(3)(B) response disputes the truth of the witness statements but not the fact that the statements were made, Doc. 41 at ¶ 20, so IDHS's assertion that the witness statements were given is deemed admitted to the extent the assertion is supported by the cited materials.) Bell reported that he was “a bit concerned about [his] safety” because he felt that Vovillia was “delusional” and possibly “suffering from mental illness.” Doc. 37-8 at 8. (Vovillia objects to Bell's witness statement on the ground that it “is argumentative” and “calls for a medical conclusion” that Bell was not “qualified” to make. Doc. 41 at ¶ 20. The objection is overruled because, even if Bell's lay opinion would be inadmissible to prove that Vovillia was in fact “delusional” or mentally ill, Bell's statement is admissible to prove that he shared his concerns about Vovillia with IDHS.)

         After the investigation was completed, Calhoun and Scott Jones (who worked in labor relations) met with Barnes and Bell to review IDHS's Rules of Employee Conduct and workplace violence and sexual harassment policies. Id. at ¶ 21; Doc. 37-6 at 6-7; Doc. 37-9 at 2-3. Vovillia testified at his deposition that he did not recall being assigned to the same home as either Barnes or Bell after he submitted the December 2014 UER, but that he continued to encounter them at work. Doc. 41 at ¶ 22; Doc. 37-2 at 30. (There is no need to determine the admissibility of Vovillia's subsequent averment that he was “replaced in a home with” Barnes and Bell, Doc. 69 at ¶ 5, because considering it would not affect the outcome of IDHS's summary judgment motion.)

         B. December 2015 UER

         Vovillia submitted a second UER on December 29, 2015, stating that during a class, “Wade the psychologist” told him, “You like to rape lil girls” and “You should go on trial[, ] punk.” Doc. 41 at ¶ 23; Doc. 37-10 at 2. In response to the UER, internal security investigator John Meade obtained written witness statements from four employees who attended the class and from the accused psychologist, Wade Frazier. Doc. 41 at ¶ 24; Doc. 37-11 at 2-6. Frazier denied making the comments or saying anything else to Vovillia, and the four witnesses denied hearing Frazier say anything to or about Vovillia. Doc. 41 at ¶ 24; Doc. 37-11 at 2-6. (Vovillia objects to the witness statements on hearsay grounds. Doc. 41 at ¶ 24. The statements are not hearsay because they are not offered for the truth of what the witnesses reported-that Frazier did not say anything to Vovillia-but rather as evidence of the information Meade gathered. See Simpson v. Beaver Dam Cmty. Hosps., Inc., 780 F.3d 784, 796 (7th Cir. 2015) (holding that a negative reference from the plaintiff's former employer was not hearsay because it had been “considered not for its truth, but to show its effect on the state of mind” of the defendant in rejecting the plaintiff's application); Schindler v. Seiler, 474 F.3d 1008, 1011 (7th Cir. 2007) (“[A] statement offered to show its effect on the person who heard the statement is not hearsay.”). Because IDHS's assertion that the witness statements were made is supported by the cited materials and is not controverted by Vovillia's response-which disputes the truth of the statements, but not that the witnesses made them, ibid.-the assertion is deemed admitted.)

         C. March 2016 UER

         Vovillia submitted a third UER on March 3, 2016, stating: “I am continuously and constantly every day at work, being harassed and provoked by almost everyone regarding the rumors at Kiley, calling and insinuating that I am a rapist, I like little kids, and that I am a snitch. I can not concentrate on my job.” Id. at ¶ 25; Doc. 37-12 at 2. In a written statement given to an internal investigator, Vovillia explained that the people harassing him were his home manager, staff in the home to which he was assigned, and staff in other homes. Doc. 41 at ¶ 26; Doc. 37-13 at 2-3. Vovillia added that the rumors about him had “spread around Lake County, ” including to “the gym, McDonald's, [and] the gas stations.” Doc. 41 at ¶ 26; Doc. 37-13 at 2-3. He asked that a supervisor direct the home manager and staff to stop harassing and provoking him. Doc. 41 at ¶ 26. Because Vovillia did not specify who was harassing him, his supervisor “talked to staff generally regarding provoking or harassing other staff.” Id. at ¶ 27.

         D. September 2016 Altercation and Suspension

         On September 9, 2016, Vovillia started a verbal altercation with a coworker, Adele Early-Coleman, in front of residents at the home where they were working. Id. at ¶ 28; Doc. 37-14 at 2-11. According to Early-Coleman, Vovillia confronted her while she was talking to another coworker, Autumn Kars, and said that he was “tired of [her] bullshit” and knew that she was talking about him. Doc. 41 at ¶ 28; Doc. 37-14 at 2-3. Early-Coleman reported the altercation to her supervisor, Craig Smith. Doc. 41 at ¶ 28; Doc. 37-14 at 3-4. She also called the police and reported the altercation as “workplace violence” and a “verbal[] assault[].” Doc. 41 at ¶ 28; Doc. 37-14 at 4.

         Meade conducted an investigation, interviewing witnesses and obtaining written statements. Doc. 41 at ¶¶ 29-30; Doc. 37-14. Kars stated that the day before the altercation, she told her supervisors-Calhoun and Lisa Schmidt, the unit administrator-that Vovillia sometimes made her feel uncomfortable “because he hears things and acts paranoid.” Doc. 41 at ¶ 30; Doc. 37-14 at 20-21. Stephen Burttey, who worked in the same home as Vovillia, told Meade that he noticed Vovillia talking to himself “a few times” and believed that he was “paranoid and always think[s] somebody is after him.” Doc. 41 at ¶ 29; Doc. 37-14 at 22. Burttey added that he had never heard anyone talking about Vovillia. Doc. 41 at ¶ 29; Doc. 37-14 at 22. (Vovillia objects to Burttey's witness statement, arguing that it is “argumentative, ” “lacks foundation, ” and “calls for a medical prognosis.” Doc. 41 at ¶ 29. Because the witness statement is admissible to prove that Burttey shared his concerns with IDHS, the objection is overruled. Vovillia also asserts that Burttey's “opinion should be disregarded” because he “admits to not having much [sic] discussions with” Vovillia. Ibid. Vovillia does not cite anything in the record to support that assertion; in any event, the assertion does not controvert IDHS's account of what Burttey told Meade, which is supported by the cited materials.) Another of Vovillia's coworkers, Veronica Perry, reported that about three or four weeks before the September 9 altercation, Vovillia confronted her during a shift change, saying, “You are talking shit about me.” Id. at ¶ 31; Doc. 37-14 at 17. Perry denied that she or anyone else had been talking about Vovillia. Doc. 41 at ¶ 31; Doc. 37-14 at 18.

         In October 2016, Schmidt suspended Vovillia for seven days, effective from November 16 through November 22, for conduct unbecoming a state employee. Doc. 41 at ¶ 32; Doc. 37-6 at 5; Doc. 37-15 at 2. Specifically, Schmidt determined that Vovillia violated IDHS's Rules of Employee Conduct by “us[ing] and engag[ing] in inappropriate language and behavior with a co-worker” and by “engag[ing] in disruptive interactions with a co-worker while in the presence of” residents, and that he had violated the Workplace Violence Policy. Doc. 41 at ¶ 32; Doc. 37-6 at 5; Doc. 37-15 at 2. The Rules of Employee Conduct prohibited employees from “us[ing] vulgar, profane or loud/disruptive language in the workplace or while on work status in a manner directed at or which could disturb clients and/or other staff.” Doc. 41 at ¶ 67 (quoting Doc. 37-30 at 1). The Kiley Center's workplace guidelines for employees assigned to homes further provided: “Speak in normal, conversational tones. There should be no altercations, verbal or otherwise. Any altercation will be addressed as potential workplace violence and an internal ...

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