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Milsap v. City of Chicago

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

September 30, 2019

DARRELL MILSAP, Plaintiff,
v.
CITY OF CHICAGO, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN ROBERT BLAKEY, UNITED STATES DISTRICT JUDGE

         This case is before the Court on Defendant&#3');">39;s motion for summary judgment [109]. For the reasons explained below, the Court grants the motion.

         A. Facts & Procedural History [1]

         Plaintiff Darrell Milsap was employed by the City of Chicago&#3');">39;s Department of Streets and Sanitation (DSS) from August 1, 1999 until May 22, 2015, when he resigned. [110], ¶ 1. Plaintiff began his employment as a laborer, and worked in several bureaus within DSS until 2006, when he injured his leg; he remained on duty disability leave until approximately late 2007 or early 2008, when he returned to work as a night watchman. Id. at ¶¶ 2-4, 6. Following surgery, Plaintiff received a permanent work restriction limiting his ability to lift and walk. Id. at ¶ 5. From 2011 until at least 2013');">3 or 2014, Plaintiff worked as a restricted clerk. Id. at ¶ 7. On May 1, 2014, Plaintiff became a field sanitation specialist, a job he held until he resigned on May 29, 2015. Id. at ¶¶ 8-9. Plaintiff admits that he resigned, but claims that his resignation was forced, not voluntary. [116], ¶ 9. In either case, the City rehired Plaintiff in November 2016 as a seasonal pool motor truck driver, a job he still holds today. [110], ¶ 10; [116], ¶ 10.

         During the time Plaintiff worked as a restricted clerk, Plaintiff reported to division superintendent Harold Irving. [110], ¶ 12. Irving supervised Plaintiff from approximately September of 2011 through approximately August of 2013');">3. Id. at ¶ 14. Plaintiff claims that throughout his tenure under Irving, Irving: called Plaintiff names, such as “cripple” or “broke-back”; threw Plaintiff&#3');">39;s office supplies and belongings into the garbage; unplugged Plaintiff&#3');">39;s computer; coughed and spit on Plaintiff&#3');">39;s phone; and embarrassed Plaintiff in front of other employees. Id. at ¶ 17; [116], ¶ 17. Plaintiff claims that the harassment continued “to a certain extent” after he moved to the field sanitation specialist job in 2014. [110], ¶ 21; [115], ¶¶ 5- 6. Specifically, Plaintiff claims that Irving would “ask around” about Plaintiff, his whereabouts, and the City vehicle he was driving. [115], ¶ 7. Irving denies that he did any of these things. [110], ¶ 20.

         On December 10, 2012, Plaintiff was involved in an accident while making a mail run with Kenneth Austin, another laborer; the City vehicle was rear ended. Id. at ¶ 25. When reporting the accident to the Chicago Police Department, Plaintiff reported that he was driving the truck at the time of the accident. Id. at ¶ 26. Plaintiff also prepared a City of Chicago Vehicle Accident Report stating that he was driving the truck when it was hit. Id. at ¶ 27. Plaintiff claimed that Irving and another supervisor, Gerald Brown, pressured him to say that he was driving and forced him to list himself as the driver on the accident report, when, in fact, Kenneth Austin was driving at the time of the accident. [116], ¶¶ 26, 27. Plaintiff claims that Irving threatened to fire him if he reported Kenneth Austin as the driver. Id.

         In 2013');">3, the Officer of the Inspector General investigated the December 10, 2012 accident. [110], ¶ 29. Plaintiff submitted to two interviews; in the first, on April 24, 2013');">3, Plaintiff stated-at least a dozen times, under oath-that he was driving the truck at the time of the accident Id. at ¶¶ 3');">30-3');">31. Plaintiff admits that he made such false statements under oath but claims that he only did so under duress because Irving, Brown, and Kenneth Austin&#3');">39;s mother, Alderman Carrie Austin, allegedly threatened him. [116] at ¶¶ 3');">30-3');">31. In the second OIG interview, conducted May 29, 2013');">3, Plaintiff stated that he had made a “mistake” in his first interview and that, in fact, Kenneth Austin had been driving at the time of the December 2012 accident. [110], ¶ 3');">36. Plaintiff claims the OIG conducted the second interview at his request, and that he initiated the second interview because he wanted to set the record straight, come clean and tell the truth about being forced to lie. [110], ¶¶ 3');">33');">3-3');">34; [116], ¶¶ 3');">33');">3-3');">34. Yet, at the second interview, Plaintiff told the OIG that he had not felt pressured, harassed, or intimidated. [110], ¶ 40.

         Ultimately, OIG prepared a report concerning the December 10, 2012 accident; OIG informed then-Commissioner Charles Williams that Kenneth Austin and Plaintiff both violated Illinois law and City of Chicago Personnel Rules and recommended that both employees be disciplined, up to and including termination. [110] at ¶¶ 45-47. On May 7, 2015, Commissioner Williams asked the City&#3');">39;s Law Department to prepare charges seeking both employees&#3');">39; termination. Id. at ¶ 52. Williams placed a courtesy call to Alderman Carrie Austin to advise her of the charges, and, the next day, on May 11, 2015, Kenneth Austin submitted his notice of resignation. Id. at ¶¶ 53');">3, 55. Plaintiff submitted his notice of resignation on May 29, 2015. Id. at ¶ 63');">3. Plaintiff claims that he “was forced to resign or face disciplinary action, ” allegedly “in retaliation for exposing the City&#3');">39;s corruption, favoritism, and nepotism.” [116], ¶ 63');">3.

         On August 10, 2015, Plaintiff filed a charge of discrimination with the EEOC, alleging discrimination based on age and disability. [110], ¶ 64. The EEOC issued a right-to-sue letter on February 3');">3, 2016. Id. at ¶ 65.

         On April 11, 2016, Plaintiff submitted a pro se complaint in this Court, alleging age and disability discrimination, [1]. He filed an amended complaint in February 2017 alleging discrimination based solely on disability, [3');">31]. In May 2017, this Court dismissed Plaintiff&#3');">39;s pro se complaint for failure to state a claim, having determined that Plaintiff failed to allege that his firing was tied to his disability. See [43');">3]. The Court, however, gave Plaintiff leave to amend, and, in August 2017, now with assistance of counsel, Plaintiff filed a second amended complaint (SAC) [49], which, for the first time, named individual defendants along with the City, and alleged, in addition to disability discrimination, First Amendment retaliation, violation of the Illinois Whistleblower Act (IWA), and retaliatory discharge. The Court dismissed Plaintiff&#3');">39;s First Amendment and ADA claims but allowed Plaintiff&#3');">39;s IWA and retaliatory discharge claims to proceed. See [64], [65].

         Plaintiff filed a Third Amended Complaint, [66], on February 9, 2018, again asserting First Amendment claims, an ADA claim (now cast as a hostile work environment claim), and IWA and retaliatory discharge claims. Once again, the City and the individual Defendants moved to dismiss, [71], and, once again, this Court granted the motion in part and denied it in part. See [83');">3]. The Court once again dismissed Plaintiff&#3');">39;s First Amendment claims, this time with prejudice, and once again allowed Plaintiff&#3');">39;s IWA and retaliatory discharge claims to proceed. Id. But based upon the amended allegations concerning Plaintiff&#3');">39;s disability discrimination claim, the Court this time allowed the ADA claim to proceed. In particular, the Court found that Plaintiff&#3');">39;s allegations that Irving called him a cripple and broke-back on a near-daily basis may be sufficient to state a hostile work environment claim under the ADA. Id.

         Thereafter, the parties conducted discovery on Plaintiff&#3');">39;s remaining claims. Now, upon a fully-developed factual record, Defendant once again seeks to dispose of Plaintiff&#3');">39;s claims: Defendant seeks summary judgment on counts III, IV, and V of the TAC. See [109].

         B. Legal Standard

         Summary judgment is proper where 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). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 3');">317');">477 U.S. 3');">317, 3');">323');">3 (1986).

         In determining whether a genuine issue of material fact exists, this Court must construe all facts and reasonable inferences in the light most favorable to the non-moving party. See CTL ex rel. Trebatoski v. Ashland Sch. Dist., 743');">3 F.3');">3d 524, 528 (7th Cir. 2014). The non-moving party has the burden of identifying the evidence creating an issue of fact. Harney v. Speedway SuperAmerica, LLC, 3');">3d 1099');">526 F.3');">3d 1099, 1104 (7th Cir. 2008). To satisfy that burden, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, a mere “scintilla of evidence” supporting the non-movant&#3');">39;s position does not suffice; “there must be evidence on which the jury could reasonably find” for the non-moving party. Anderson, 477 U.S. at 252.

         C. Discussion & Analysis

         Defendant seeks summary judgment on all of the remaining claims asserted in the TAC, Plaintiff&#3');">39;s hostile work environment ADA claim (count III), his IWA claim (count IV), and his retaliatory discharge claim (count V). This Court considers each below.

         1. Plaintiff&#3');">39;s ADA Hostile Work Environment Claim

         In the TAC, Plaintiff claims that his supervisors, Harold Irving and Gerald Brown, harassed him because of his disability, creating a hostile work environment, in violation of the ADA. Initially, a hostile work environment claim may not even be viable under the ADA. As this Court noted in its prior decision, the Seventh Circuit has not explicitly decided whether a claim for hostile work environment is cognizable under the ADA. E.g., Yochim v. Carson, No. 18-3');">3670, 2019 WL 3');">3822158, at *5 (7th Cir. Aug. 15, 2019) (declining to decide whether hostile work environment claim is actionable under the ADA); Lloyd v. Swifty Transp., Inc., 552 F.3');">3d 594, 603');">3 (7th Cir. 2009) (same). But even if such a claim exists, Plaintiff cannot win on his claim here, both because he filed his EEOC charge too late and because the evidence undermines his allegations concerning harassment.

         Under the ADA, a plaintiff has 3');">300 days from the occurrence of an allegedly discriminatory act in which to file a timely charge with the EEOC. 42 U.S.C. § 12117(a). A plaintiff&#3');">39;s failure to file a timely charge bars his suit. See Calvin v. SubZero Freezer, Co., 697 Fed.Appx. 874, 875 (7th Cir. 2017) (citing Salas v. Wis. Dep&#3');">39;t of Corr., 3');">3 F.3');">3d 913');">3');">493');">3 F.3');">3d 913');">3, 921 (7th Cir. 2007)). Thus, Plaintiff&#3');">39;s ADA hostile work environment claim is time-barred if it accrued before October 14, 2014 (3');">300 days before he filed his August 10, 2015 charge with the EEOC). And summary judgment in Defendant&#3');">39;s favor is appropriate if there is no genuine dispute as to whether Plaintiff&#3');">39;s claims accrued before that date.

         Plaintiff alleged in his complaint that Irving verbally abused him and harassed him, because of his disability, on a near-daily basis. But it is undisputed that Irving only supervised Plaintiff from approximately September 2011 until August 2013');">3. [116], ¶ 14. In fact, Irving left the City on November 1, 2013');">3. Id. at ¶ 16. Thus, the potentially actionable conduct-the conduct alleged in the TAC-all occurred more than 3');">300 days before Plaintiff filed his EEOC charge.

         Plaintiff claims that his claim is timely because his harassment continued “to a certain extent” even after he was out from under Irving. Id. at ¶ 8. Plaintiff claims that Irving “asked around” about him, asking about his whereabouts or what City vehicle he was driving. Plaintiff also claims that Lemuel Austin, Kenneth Austin&#3');">39;s brother, harassed him in the early spring of 2015 when he approached Plaintiff at a local baseball game and “threatened to jump on” Plaintiff and “kick [his] ass.” [115], ...


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