United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT BLAKEY, UNITED STATES DISTRICT JUDGE
case is before the Court on Defendant3');">39;s motion for
summary judgment . For the reasons explained below, the
Court grants the motion.
Facts & Procedural History 
Darrell Milsap was employed by the City of Chicago3');">39;s
Department of Streets and Sanitation (DSS) from August 1,
1999 until May 22, 2015, when he resigned. , ¶ 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. ,
¶ 9. In either case, the City rehired Plaintiff in
November 2016 as a seasonal pool motor truck driver, a job he
still holds today. , ¶ 10; , ¶ 10.
the time Plaintiff worked as a restricted clerk, Plaintiff
reported to division superintendent Harold Irving. ,
¶ 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
Plaintiff3');">39;s office supplies and belongings into the
garbage; unplugged Plaintiff3');">39;s computer; coughed and spit
on Plaintiff3');">39;s phone; and embarrassed Plaintiff in front
of other employees. Id. at ¶ 17; , ¶
17. Plaintiff claims that the harassment continued “to
a certain extent” after he moved to the field
sanitation specialist job in 2014. , ¶ 21; ,
¶¶ 5- 6. Specifically, Plaintiff claims that Irving
would “ask around” about Plaintiff, his
whereabouts, and the City vehicle he was driving. ,
¶ 7. Irving denies that he did any of these things.
, ¶ 20.
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. , ¶¶ 26, 27.
Plaintiff claims that Irving threatened to fire him if he
reported Kenneth Austin as the driver. Id.
2013');">3, the Officer of the Inspector General investigated the
December 10, 2012 accident. , ¶ 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
Austin3');">39;s mother, Alderman Carrie Austin, allegedly
threatened him.  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. , ¶ 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. , ¶¶
3');">33');">3-3');">34; , ¶¶ 3');">33');">3-3');">34. Yet, at the second
interview, Plaintiff told the OIG that he had not felt
pressured, harassed, or intimidated. , ¶ 40.
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.
 at ¶¶ 45-47. On May 7, 2015, Commissioner
Williams asked the City3');">39;s Law Department to prepare
charges seeking both employees3');">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
City3');">39;s corruption, favoritism, and nepotism.”
, ¶ 63');">3.
August 10, 2015, Plaintiff filed a charge of discrimination
with the EEOC, alleging discrimination based on age and
disability. , ¶ 64. The EEOC issued a right-to-sue
letter on February 3');">3, 2016. Id. at ¶ 65.
April 11, 2016, Plaintiff submitted a pro se
complaint in this Court, alleging age and disability
discrimination, . He filed an amended complaint in
February 2017 alleging discrimination based solely on
disability, [3');">31]. In May 2017, this Court dismissed
Plaintiff3');">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)
, 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 Plaintiff3');">39;s First Amendment and ADA
claims but allowed Plaintiff3');">39;s IWA and retaliatory
discharge claims to proceed. See , .
filed a Third Amended Complaint, , 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, , and, once
again, this Court granted the motion in part and denied it in
part. See [83');">3]. The Court once again dismissed
Plaintiff3');">39;s First Amendment claims, this time with
prejudice, and once again allowed Plaintiff3');">39;s IWA and
retaliatory discharge claims to proceed. Id. But
based upon the amended allegations concerning Plaintiff3');">39;s
disability discrimination claim, the Court this time allowed
the ADA claim to proceed. In particular, the Court found that
Plaintiff3');">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.
the parties conducted discovery on Plaintiff3');">39;s remaining
claims. Now, upon a fully-developed factual record, Defendant
once again seeks to dispose of Plaintiff3');">39;s claims:
Defendant seeks summary judgment on counts III, IV, and V of
the TAC. See .
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).
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-movant3');">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.
Discussion & Analysis
seeks summary judgment on all of the remaining claims
asserted in the TAC, Plaintiff3');">39;s hostile work environment
ADA claim (count III), his IWA claim (count IV), and his
retaliatory discharge claim (count V). This Court considers
Plaintiff3');">39;s ADA Hostile Work Environment Claim
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.
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 plaintiff3');">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. Dep3');">39;t of Corr.,
3');">3 F.3');">3d 913');">3');">493');">3 F.3');">3d 913');">3, 921 (7th Cir. 2007)). Thus, Plaintiff3');">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
Defendant3');">39;s favor is appropriate if there is no genuine
dispute as to whether Plaintiff3');">39;s claims accrued before
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. , ¶ 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.
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');">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.” , ...