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Antlitz v. Forest Preserve District of Cook County

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

September 30, 2019

DEBORAH ANTLITZ, Plaintiff,
v.
FOREST PRESERVE DISTRICT OF COOK COUNTY, Defendant.

          MEMORANDUM OPINION AND ORDER

          Honorable Edmond E. Chang United States District Judge

         Plaintiff Deborah Antlitz sued her employer, the Forest Preserve District of Cook County, alleging sex discrimination (Count 1) and retaliation (Count 2) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as retaliation under the Illinois Whistleblower Act (Count 3), 740 ILCS 174/1 et seq., and the Cook County Inspector General Ordinance (Count 4), Cook County Code Ch. 2, Art. IV, Div. 5, § 2-291.[1] The District moves for summary judgment on all claims. R. 34, [2] Def.’s Mot. Summ. J. For the reasons stated below, the District’s motion is granted as to the sex-discrimination claim, but denied as to the retaliation claims.

         I. Background

         In deciding the District’s motion for summary judgment, the Court views the evidence in the light most favorable to Antlitz. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The facts narrated here are undisputed unless otherwise noted.

         Antlitz has been working as an Ecologist for the District since August 1999. R. 35-1, DSOF ¶ 2;[3] R. 35-3, DSOF, Exh. B at 6:13-21. In 2003, the District promoted Antlitz to the position of Ecologist II. DSOF ¶ 3; DSOF, Exh. B at 7:5-7. In October 2011, after her boss retired, she was named Interim Chief Ecologist (or Ecologist III). R. 37, Pl.’s Resp. DSOF ¶ 3; R. 38-2, PSOF, Exh. A at 219:20-220:1; see also DSOF, Exh. B at 25:17-22. Her title returned to that of Ecologist II when Charles O’Leary was hired in 2012 as an Ecologist III. Pl.’s Resp. DSOF ¶ 3; R. 38-3, PSOF, Exh. B at 44:1-6. Until 2012, Antlitz’s employee record contained no disciplinary actions. R. 38, PSOF ¶ 1; PSOF, Exh. A at 130:16-131:3.

         When Charles O’Leary was hired as an Ecologist III in 2012, he became Antlitz’s direct supervisor. See, e.g., R. 35-4, DSOF, Exh. C at 1-6. In 2015, he was promoted to Deputy Director of Resource Management, but he still kept his role as Antlitz’s direct supervisor. See, e.g., R. 38-6, PSOF, Exh. E at 7-16. The other relevant person in the supervisory chain of command is John McCabe, who became the Director of Resource Management in 2014; before that, he held the position of Deputy Director. See DSOF ¶¶ 5-6; R. 35-5, DSOF, Exh. D at 8:12-25; R. 38-4, PSOF, Exh. C at Exh. 11.

         A. Disciplinary History

         In November 2012, the District disciplined Antlitz for her work performance earlier that year. DSOF, Exh. B at Exh. 8 (FPD00497). Specifically, the District accused Antlitz of “display[ing] inappropriate, unprofessional behavior while working with a hired contractor which led to work being shut down and additional costs being incurred … .” Id. The contractor reported that Antlitz “inappropriately questioned his Project Foreman, making threatening statements in regard to a different project and made disparaging remarks directed toward other District staff involved in that project.” Id.

         A pre-disciplinary hearing took place on November 7, 2012, and attendees included Antlitz, her attorney Tim Johnson, Chris Merenowicz (Director of Resource Management), John McCabe (then the Deputy Director of Resource Management), Charles O’Leary (Resource Ecologist III), Keino Robinson (Senior Attorney), and Michelle Gage (Director of Human Resources). DSOF, Exh. B at Exh. 8 (FPD000495-96). Antlitz was ultimately suspended for three days, beginning on November 26, 2012, for violating four Cook County Rules of Conduct.[4] Id.

         On October 18, 2013, [5] Antlitz filed a Charge of Discrimination against the District with the Illinois Department of Human Rights (IDHR) and the Equal Employment Opportunity Commission (EEOC), alleging that her three-day suspension in November 2012 was an act of retaliation by the District after she reported alleged sex discrimination to the Human Resources Manager. PSOF ¶ 3; R. 38-14, PSOF, Exh. N (EAB 480). Antlitz had reported “an ongoing pattern of [sex] discrimination by John Raudenbush” to Human Resources on September 14 and 24, 2012. PSOF, Exh. N (EAB 481). The District became aware of the charge around November 14, 2013. PSOF ¶ 3; PSOF, Exh. N (EAB 478).

         B. Schaumburg Grasslands Management Plan

         In 2015, one of Antlitz’s responsibilities was to write a management plan for the Schaumburg Grasslands. See, e.g., DSOF ¶ 13. In late January 2015, Antlitz emailed the Illinois Department of Natural Resources (referred to in exhibits and depositions by the acronym “IDNR”) about the Schaumburg Grassland plan, asking for a “professional opinion on some proposed management activities as they relate to the state-endangered black-cuckoo.” PSOF, Exh. E at Exh 8 (FPD001791). In a February 2 email, IDNR Impact Assessment Section employee Keith Shank responded that, under Illinois law, a local unit of government undertaking the “clearing operations” Antlitz described would be required to consult the IDNR, because that would constitute a plan to “alter environmental characteristics of the land, air, or water … .” Id. at Exh 8 (FPD001789-90). Antlitz replied, in part, that “[i]t would be a very good thing if an authority at the IDNR would approach the FPD leadership and make this legal obligation clear.” Id. at Exh. 8 (FPD001788).

         On April 8, 2015, Antlitz sent an email to O’Leary, copying McCabe, and requested a “copy of the consultation or incidental take authorization” for the Schaumberg Grassland plan, as proof of compliance with the Endangered Species Act. PSOF, Exh. E at Exh. 7. If that consultation did not take place, she wrote, “there is a violation to be reported to the state.” Id. A few days later, Antlitz forwarded O’Leary and McCabe her communications with the IDNR, stating that the draft management plan “would require consultation process with them before approval.” Id. at Exh. 8 (FPD001788). In response, O’Leary instructed Antlitz to obtain his approval prior to contacting outside agencies. Id. Sometime in April 2015-although unclear exactly when-Antlitz filed an online complaint with the IDNR, alleging that the District violated the Endangered Species Act by destroying the habitat of the black-billed cuckoo. See DSOF ¶ 14; PSOF, Exh. B (FPD001780-81). Antlitz also informed O’Leary of this complaint that same month. DSOF ¶ 15; DSOF, Exh. B at 230:9-12.

         At some point in 2015, Antlitz also reported to the Office of the Independent Inspector General of Cook County (call it the “OIG” for short) that the District was violating the Illinois Endangered Species Act. See DSOF ¶ 16; PSOF, Exh. B (FPD001780-81). On July 29, 2015, Antlitz emailed Lorraine Ambriz, an investigator at the OIG, to level an accusation against O’Leary: “Attached is an e-mail I sent to Charles O’Leary as a follow-up to our May 20 meeting, when he expressed intent to ignore the endangered species act and re-draft the schedule.” PSOF, Exh. E at Exh. 9. In the May 20 email to O’Leary, Antlitz asked him, in part, to “[p]lease consider including the recommended updates we talked about[.]” Id. She also urged him to take responsibility of what she believed to be an objectionable project: “You will add your name to this to clarify that you are assuming liability for this management schedule. Until we definitely address the consultation requirements and endangered species concerns with the IDNR, I am not endorsing a schedule which may be construed as a violation of the endangered species act.” Id.

         Later that year, on November 13, 2015, OIG Investigator Ambriz informed Antlitz that the OIG “received information … that your superiors and/or RM management has been more receptive to the site management plans you or other Ecologists presented; particularly for the black-billed cuckoo; and have changed the plan back to the one you revised to accommodate conservation plans for the black-billed cuckoo; and that management has approved the new, updated plan.” PSOF, Exh. B (FPD001781). The investigator asked for updates: “I recall you told us that FM Director Charles O’Leary … scrapped your revised plan, deleting your black-billed cuckoo considerations, and signed/approved the one he wanted to be utilized. Let us know if anything has improved, changed, or if there are any updates … .” Id. In her response on November 18, 2015, Antlitz reiterated that there “is still … evident lack of regard for the state laws of endangered species, [and] their refusal to participate in the required consultation process with IDNR.” Id. (FPD001780-81). Although the exhibit provided is cut off, it appears that Antlitz sent another email in which she purported to quote O’Leary’s reaction to her complaint: “‘I take it this means you have made a complaint. I am really sorry to see you going that route…’ He pretty much got angry and silent and walked out without attempting to clarify what the true situation was as to the endangered species and management plan for Schaumburg grasslands. I felt very threatened by his tone of voice, body language, lack of eye contact, and words. … Supervisor Charles O’Leary evidently did not get the message from whoever you spoke with at FPD.” Id. (FPD001780).

         C. Bluff Spring Fen Management Plan

         In 2015, Antlitz was also working on the site management plan for the Bluff Spring Fen Nature Preserve. DSOF ¶ 24; DSOF, Exh. B at 81:22-82:2. To get things going, in September 2015, Antlitz sent an email to various District partners (and copying O’Leary and Raquel Garcia-Alvarez, another District employee), attaching a draft management plan, requesting input, and suggesting a meeting in October. PSOF, Exh. E at Exh. 10. Skipping forward, in December 2015, Antlitz followed up with a “nearly finalized Bluff Spring Fen Nature Preserve Plan” to O’Leary and District partners. Id. at Exh. 13. The partners on this particular email were: Steve Byers, a representative of the Illinois Nature Preserve Commission who had authority to approve the plan; Leon Halloran, a volunteer steward and one of the plan signatories; and Doug Taron, a butterfly expert and the President of Friends of Bluff Spring Fen. See id.; PSOF, Exh. A at 163:12-24, 171:21-172:13; PSOF, Exh. E at 340:13-17. Byers responded, “I will take a look at this next week. I appreciate that you also copied Leon and Doug.” Id. O’Leary also responded to the whole group, saying “I will also want to review again. Will send on any comments.” PSOF, Exh. E at Exh. 13.

         In mid-January 2016, O’Leary sent an email to only Antlitz, attaching the plan annotated with his comments. PSOF, Exh. E at Exh. 15. Leading up to that email (from mid-September into December 2015), there had been multiple emails back and forth with the entire group, and never did O’Leary instruct Ms. Antlitz not to copy other people.[6] Id. at 337:10-22; see also PSOF, Exh. E at Exhs. 11-14. After O’Leary sent his comments on the plan to Antlitz only, Antlitz responded-but included others on the response. Specifically, on January 19, 2016, Antlitz emailed O’Leary, Byers, Taron, and Halloran the plan with O’Leary’s comments and her responses, noting that “[s]ome of them would benefit from discussion and expert input … with our longstanding collaborative team.” PSOF, Exh. E at Exh. 16. In the text of the email, Antlitz directed several questions concerning O’Leary’s comments to Taron, Halloran, and Byers. Id.

         Most of O’Leary’s 14 comments on the Bluff Spring draft plan were actually questions seeking input. PSOF, Exh. E at Exh. 16. As for the rest, Antlitz incorporated several of O’Leary’s comments into the revised plan, see, e.g., id. at Comment #CH019, but she also disagreed or pushed back on others, see, e.g., id. at Comment #CHO13. Worth noting is one of Antlitz’s responses, which later prompted an accusation against her for disparaging District staff. See PSOF, Exh. C at Exh. 11 (FPD000012). O’Leary asked Antlitz to remove the first part of the following sentence: “Since the 2012 drought followed by a site-wide prescription burn at the behest of the forest preserve’s wildlife department staff, the eyed brown butterfly has been seen only at low and sporadic numbers … .” PSOF, Exh. E at Exh 16 (Comment #CH09). O’Leary wrote that “the relationship is speculative”-that is, the relationship between the burn and the low sightings of the butterfly. Id. Antlitz responded, “The sentence does not state definitive causality, but the risk of drought and burning on these butterflies is not ‘speculation’ … The FPCC should stand in accountability to INPC for these actions that violated the standing nature preserve plan at the time. The ramifications … in light of better science being ignored is serious.” Id. Antlitz then referenced the OIG’s 2012 Third Quarterly Report (the OIG Report), which is a public document. See id.; Pl.’s Resp. DSOF ¶ 61; PSOF, Exh. B (FPD000115). The paragraph that Antlitz cited discusses the OIG’s finding that an unnamed Wildlife Biologist II employee did not meet the minimum qualifications of the position, particularly those necessary for job positions that are scientific in nature. PSOF, Exh. B (FPD000115).

         On January 21, 2016, Doug Taron (the butterfly expert who does not work for the District) responded to Antlitz’s various questions and thanked her “for putting together such a strong document.” PSOF, Exh. E at Exh. 17. That same day, O’Leary also responded to the group, specifically to Taron’s comments as well as to some of Antlitz’s. Id. at Exh. 18. O’Leary ended the email by noting that he was holding off on approving the plan: “Looking at some of the other comments in the text, I am not comfortable signing off on the schedule as it reads now. I’ll take a closer look at this document and we can have further discussion.” Id. There is no evidence that O’Leary informed Antlitz of the potential disciplinary ramifications of sharing his comments with the wider group at any point before February 4, 2016, when he issued her a Disciplinary Action Form. Cf. DSOF, Exh. C at Exh. 25.

         D. Busse South Shoreline Restoration Project

         At the end of November 2015, Antlitz requested winter work to be conducted for the Busse South Shoreline Restoration Project. PSOF ¶ 19; R. 38-7, PSOF, Exh. F at 20:13-21:16, Exh. 1 (FPD000030). In early December 2015, Troy Showerman, the Project Manager, see R. 35-7, DSOF, Exh. F at 4, responded to Antlitz’s request with comments and questions for clarification, and also suggested that there was no need to protect ash trees: “I honestly see no reason to protect ash. I will not include as a target which should protect the majority of them by default.” Id. at Exh. 1 (FPD000029-30). But Antlitz responded that the “ash to be protected at this point is a stand of very tiny saplings” and expressed a preference “that mention of the intent to protect ash in that unit were clearly stated … .” Id. at Exh. 1 (FPD000029). Showerman replied that this was fine. Id. O’Leary was copied on these communications, see, e.g., id., and the final work order specifically read: “Avoid treatment of ash sapling/seedling[, ]” id. at Exh. 4.

         The next month, in mid-January 2016, Assistant Resource Project Manager Brenda Occhuizzo arranged for Antlitz to go to the Busse South site and meet with the contractor about the ongoing work. PSOF ¶ 20; R. 38-16, PSOF, Exh. P at Exh. 4. It is undisputed that, “while meeting with the contractor, Antlitz discussed the most pragmatic way of protecting the ash seedlings from destruction and suggested hand tools.” PSOF ¶ 20; PSOF, Exh. F at Exh. 3. The next day, on January 14, Showerman informed Antlitz that he did not approve the contractor’s request for hand-cutting around the ash, stating that the description to “avoid ash seedlings” was fine, and attached an estimate of the contractor’s work. PSOF, Exh. F at Exh. 3. Antlitz appeared to caution against mowing all the ash seedlings down, but ultimately responded that “[i]f he is asking to up the price a lot, that’s understandable … .” Id.

         Around one week later, on January 22, 2016, Antlitz visited the Busse South Shoreline site again. The contractor asked her for clarification on the removal of standing dead ash near a wetland. PSOF ¶ 23; PSOF, Exh. E at Exh. 22. Antlitz responded that because this was not part of the work order, the contractor would have to speak with contract management. Id. That same day, the contractor, John Shannon, emailed Showerman and Occhiuzzo to report that “Debbie wasn’t really happy about thinning any of the elm and wasn’t thrilled we were cutting some of the ash trees out.” PSOF, Exh. E at Exh. 21 (EAB 460). He added that “it can be tuff[sic] on the crew when an ecologist comes out and is consistently unhappy with things[, ] and that “these mixed messages put a damper on the work … .” Id. (EAB 461).

         A few days later, on January 27, Showerman responded to Shannon that “the final decision making on this project should come from Brenda or I[, ]” and that “[t]he department overall does not agree with Debbie’s assessment of how to deal with what is left of the ash population know[sic] that EAB has decimated everything.” PSOF, Exh. E at Exh. 21 (EAB 460). Later that day, O’Leary informed Antlitz that the Busse contractor asked for clarification on the work order, and asked her to reach out to Showerman if she had any concerns so that Showerman could provide contractors with instructions. PSOF, Exh. E at Exh. 22 (EAB464). When Antlitz asked what the clarification was about, O’Leary did not respond. Id. (EAB 463). After following up with Showerman, Antlitz sent an email on January 29 to O’Leary reporting on the contractor’s question: “According to Troy, the contractor asked for clarification on the removal of standing dead ash near a wetland. This was an item not on the original work order, which the contractor brought up and recommended doing when I was out there. I pointed out to the contractor it was not part of the work order, but to talk to Contract Management about the suggestion. … Generally for any adjustments both Ecology and Contract Management should be in agreement. They take their instructions from Contract Management, as per their contract.” Id.

         E. January 2016 Performance Evaluation

         Antlitz had her annual review with O’Leary on January 25, 2016, covering the period of January 1, 2015 to December 31, 2015. DSOF ¶ 18; DSOF, Exh. C at Exh. 23. O’Leary gave Antlitz a rating of 2 out of 4 for teamwork, and his comments included this criticism: “In 2015, Debbie contacted outside agencies and groups to oppose decisions made by district staff. This has resulted in a lot of unnecessary work for staff and in some cases, damaged the district’s reputation.” PSOF ¶ 4; R. 38-15, PSOF, Exh. O (EAB 468). Her overall performance evaluation rating was 2.8 out of 4, translating to “Meets Some Requirements.” PSOF, Exh. O (EAB 469). At the end of that meeting, Antlitz gave O’Leary a copy of the November 13, 2015 email that Antlitz had received from Ambriz (the OIG investigator), which mentioned O’Leary’s name in connection with an OIG investigation. DSOF ¶ 19; DSOF, Exh. B at 227:1-12; DSOF, Exh C. at Exh. 24.

         The parties dispute why Antlitz gave O’Leary the OIG email. See R. 40, Def.’s Resp. PSOF ¶ 5. Antlitz testified that she was asking for clarification about the status of the Schaumburg Grassland schedule. Pl.’s Resp. DSOF ¶ 19; PSOF, Exh. B at 226:2-9. Earlier in the performance-evaluation meeting, she had asked about the plan because she thought that a change had been made (as implied in the OIG email). See Pl.’s Resp. DSOF ¶ 19; PSOF, Exh. B at 253:8-254:12. But after O’Leary said that he did not know of any changes, Antlitz showed him the email “to show documentation that someone is saying there has been a change in the plan which would have been a positive change … .” PSOF, Exh. B at 254:6-12. In contrast, O’Leary later testified at the Employee Appeals Board hearing that he “knew that it was intended to intimidate [him] … .” R. 35-6, DSOF, Exh. E at 30:9-21. Antlitz disputes that O’Leary was intimidated. Pl.’s Resp. DSOF ¶ 19. She testified that, after she gave O’Leary the email, he said: “I take it this means you filed a complaint against me. I’m really sorry to see you go this way. This is like the little lawsuit you have going.” PSOF, Exh. B at 238:4-21.

         Less than two weeks later, on February 4, 2016, Antlitz received a notice signed by Resource Management Director McCabe; the notice informed Antlitz of an upcoming pre-disciplinary hearing to address Antlitz’s potential violations of various Cook County Personnel Rules. DSOF ¶ 21; DSOF, Exh. C at Exh. 25 (EAB 421). Antlitz also received a Disciplinary Action Form from O’Leary, which briefly described the three incidents forming the basis of the disciplinary action: (1) Antlitz shared O’Leary’s Bluff Spring comments via a group-wide email on January 19, 2016; (2) Antlitz interfered with the Busse South contractor’s work on January 22, 2016; and (3) Antlitz showed O’Leary the OIG email on January 25, 2016. DSOF ¶ 23; DSOF, Exh. B at Exh. 3 (EAB 423-24). The pre-disciplinary hearing was held on February 22, 2016. ...


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