Honorable Thomas M. Durkin, United States District Judge.
Plaintiff DeMarco Nichols filed this lawsuit under Title VII, 42 U.S.C. § 2000e, against the Illinois Department of Transportation (IDOT) and the Illinois Department of Central Management System (CMS). IDOT is Nichols's former employer, and CMS is a state agency with responsibility for overseeing and implementing the state civil service and personnel code.
Nichols was hired by IDOT on March 2, 1998 to work at the I-57 Maintenance Yard in Markham, Illinois. In or about 2003, he was transferred to the Harvey Maintenance Yard in Harvey, Illinois. With the exception of one temporary short-term re-assignment in the spring of 2006, Nichols worked at the Harvey Yard from 2003 until his discharge on June 4, 2008. Nichols's position throughout his ten-year employment with IDOT was "Highway Maintainer," and one of his primary jobs was to plow snow during the winter season. During the summer months, Nichols was given various other tasks to perform. Nichols had relatively few problems during most of the years in which he was employed at the Harvey Yard, and his supervisor testified that at no time did he recall Nichols ever exhibiting any type of hostility or committing any act of violence. See R. 137-7 at 217; R. 137-8 at 26. Nichols testified that for the most part he kept to himself. He received "satisfactory" and occasional "very satisfactory" job reviews from his supervisor. See R. 137-7 at 142, 144-46. His only dissatisfactory review was in the spring of 2008, when the events at issue in this lawsuit transpired.
While at the Harvey Yard, Nichols's direct supervisor was George Martin, whose title was "Yard Technician." The yard technician is in charge of the yard, and is assisted in his duties by two permanent "lead workers" and one "lead lead worker." The permanent lead workers at the Harvey Yard in the early part of 2008 were Robert Thompson and Kevin Reynolds. The lead lead worker in this same period was Frank Romanski.
At some point prior to 2008, IDOT instituted a policy whereby workers in the yard became eligible to apply for a position of "temporary acting lead worker." If an employee volunteered to be a temporary acting lead worker and met the qualification requirements, his name was placed on a list. The yard technician was required to appoint the worker whose name was at the top of the list to act as the temporary lead worker for a two-month period. E.g.,R. 137-7 at 101-03, 174-75. The position would then rotate to the person whose name was next on the list. During the two months that a worker was assigned to be an acting lead worker, he would be paid at a higher rate to assist the permanent lead workers in their duties under the supervision of the lead lead worker, who in turn received his orders from the yard technician.
Nichols believes that his problems at work began in December 2007 because "someone" at the Harvey Yard "did not want [him] to be the acting lead worker." R. 137-20 at 5. Nichols claims that although he was acting lead worker from December 28, 2007 through February 28, 2008, Martin, Romanski, Thompson, and Reynolds refused to treat him as such. Among other things, he claims that (1) he was made to do highway maintainer work while workers who he was supposed to be supervising were "sitting" back at the yard; (2) efforts were made to procure false accusations against him; and (3) he was required to always be on the road with his crew, while other acting lead workers did not go out on the road, and if they did they got to take the supervisor's truck and ride by themselves. Id. Nichols also claims that he was suddenly being called out for rule infractions while similar or worse rule infractions of other workers were ignored. In particular, Nichols complains about a one-day suspension he received without pay for violating IDOT's "Snow and Ice Policy" on February 5, 2008. R. 137-13 at 3; R. 137-14 at 2.
Rather than attempt to summarize the contents of Nichols's grievances, the Court will set them out in full.
Nichols's first grievance challenged his citation for violating the snow and ice policy. Nichols also addressed his belief that he was being treated unfairly as acting lead worker. On March 10, 2008, Nichols filed a grievance with Martin stating as follows:
R. 137-9 at 3.
Nichols's second grievance was addressed to IDOT's policy requiring workers to rotate weekly between day and night shifts during the snow and ice season. See R. 137-7 at 130-31. Nichols's wife was suffering from a debilitating illness, and Nichols was needed at home during the evenings to care for her. Nichols requested to be relieved from the rotation policy. On March 10, 2008, he filed a grievance stating as follows:
R. 137-10 at 2.
Nichols's third grievance requested a religious accommodation to pray. According to Nichols, one of the tenets of his Islamic faith is that, when a person is faced with troubles in his life, he should pray more frequently. Nichols was finding it difficult to pray while serving as acting lead worker. Therefore, on March 10, 2008, Nichols filed a grievance stating as follows:
R. 137-11 at 2.
All three of Nichols's grievances were denied at the step 1 level
Although the timeline of events is not clearly established by the current record, it is reasonable to infer from the documents submitted to the Court that, shortly after Nichols filed these grievances, he became aware of increasing talk at the yard about someone wanting to hurt him. He previously had heard "certain `tough guy' talk around the yard" that "you don't want to piss this guy off" because "he can do this — he can do that — he can have your legs broken." R. 137-22 at 3. Nichols believed these statements referred to Romanski. Initially, Nichols claims, he dismissed comments such as this as `idle chatter.'" Id. But during the time period he was acting lead worker, he was "sitting in a truck out in the bays" when he heard "a voice say — the guy is going to get himself `fucked up.'" Id. Nichols believed this statement was made about him. Later, on March 28, 2008, one of Nichols's co-workers told him that "[Reynolds] is saying if you don't stop what you're doing, you are going to get `fucked up.'" Id. Nichols believed these threats were being made against him because he had been complaining about being treated unfairly while serving as acting lead worker and calling attention to the ways in which the lead workers, the lead lead worker, and the yard technician were misapplying the rules and policies of IDOT. Frustrated and distraught over these threats, Nichols called the Employee Assistance Program ("EAP") in Springfield. The person with whom he spoke (Donna Kohlberg), however, did not know how to handle the problem and forwarded his call to the Labor Relations office in Springfield. Id. The person with whom Nichols spoke at the Labor Relations office ("Julie") told Nichols to "go to [his] supervisors." Nichols replied that "the problem is with [his] supervisors." Id. The person from the Labor Relations office responded that her department does not "talk directly to the workers," and apparently terminated the call. Id.
A few days later, on April 1, 2008, Nichols had a medical emergency with his wife, and rushed to get to work on time. He states that he arrived within the thirty minutes grace period accorded to workers under department policies, but that Martin already had pulled the sign-in sheet and refused to let him work. Nichols says that when he complained about the incident to Giavanni Fulgenzi, District Personnel Manager, Martin lied to Fulgenzi about what time he had arrived.
On April 2, 2008, the day after Martin sent Nichols home after arriving late to work, Nichols was again at home, this time serving the one-day suspension he previously had received for violating the snow and ice policy. Nichols states that he was "very frustrated — so much so [he] felt [he] was going to do whatever [he] could to get their attention." R. 137-22 at 4. That day, Nichols sent a fax both to EAP and to the Labor Relations Department, stating the following:
R. 137-15 at 5-6.
On April 3, 2008, the Labor Relations office forwarded Nichols's fax to Fulgenzi.
The next day, Nichols received a second letter under O'Keefe's name, also signed by Fulgenzi, directing him to attend a pre-disciplinary meeting on April 10, 2008, which was "being held to discuss your alleged
R. 137-27 at 79. A third letter in O'Keefe's name and signed by Fulgenzi informed Nichols that "in compliance with Departmental Policies" a state-ordered medical examination had been scheduled for him. R. 137-21 at 2.
The pre-disciplinary meeting was held on April 10, 2008. In attendance were Nichols, Fulgenzi, Schivarelli, Martin, and Nichols's union representative, Mike Melone. R. 137-16 at 2. Melone spoke on Nichols behalf, stating the following:
Id. Nichols's statement said that he had "tried to report that [he] was being threatened to EAP Springfield" but that "[he] was blown off," and that he "put [himself] in a `real' EAP on Monday." Id. Not satisfied with this explanation, Fulgenzi directed Nichols to provide an additional rebuttal in which he was to explain each of the specific statements in the fax which Fulgenzi identified to him as being in violation of IDOT's policy against violence in the workplace. Id. at 3.
Nichols provided his supplemental statement to Fulgenzi on or about April 21, 2008. See R. 137-24 at 2-4. Nichols's supplemental statement claimed that Fulgenzi had "picked apart [his fax] to show a `problem' on MY PART," and noted that "this fax was sent ONLY AFTER YOUR EMPLOYEE ASSISTANCE UNIT, AND YOUR LABOR RELATIONS OFFICE REFUSED TO DEAL WITH THE PROBLEM." Id. at 3. Nichols then attempted to respond to the "parts" of his fax that Fulgenzi had "`picked' out of the last paragraph." Id.
Finally, Nichols explained that the statement "if there is another incident of this nature, someone at the Harvey yard is going to get `fucked up'" was "made out of sheer frustration, and born of the fact [he] tried to present [his] problem to the appropriate office (Springfield Employee Assistance Unit and Labor Relations (3-28-08)) but they wanted nothing to do with it. The fax was sent with the hope they would be more `attentive' to the PROBLEMS [he] was having with [his] supervisors." Id. Nichols closed by explaining the last line of his fax: `As to life, Allah gave it' `A coward is not likely to save it.'" This sentence meant: "Life is given by God. No man should be `AFRAID' to defend himself." Id.
The formal decision to discharge Nichols was made sometime before May 9, 2008, when a letter was prepared in O'Keefe's name and signed by Fulgenzi informing Nichols he was being "suspended up to 30 days pending decision to discharge." R. 137-25 at 2. IDOT claims that the decision to suspend Nichols pending decision to discharge was the result of a determination that Nichols's fax contained a "straight[-]forward threat of violence" in violation of IDOT's "zero tolerance policy." R. 137 at 9 (¶ 68). IDOT states that Fulgenzi and Stumpner were the ones who recommended that Nichols be discharged. R. 137 at 9 (¶ 69).
The union filed a grievance on Nichols behalf on June 8, 2008. R. 137-31 at 2. Nichols filed a charge of discrimination with the EEOC on June 24, 2008. R. 137-32. The union stated in its grievance that Nichols "was subject to an uncomfortable work environment with co-workers that was brought to the attention of management." R. 137-31 at 3. The union's position was that "the incident [of alleged threat of violence in the workplace] was over exaggerated and there was no intent of violence." Id. On July 8, 2008, Schivarelli signed off on a Step 2 and Step 2a denial of Nichols's grievance. Id. at 2. A grievance hearing was scheduled to take place on July 11, 2008. At the start of the hearing, however, Nichols was told for the first time that in order to proceed with the grievance he would have to withdraw his EEOC charge. Nichols declined to do so, and therefore the grievance hearing was not held. See R. 149-3 at 6 (Nichols Affidavit, ¶¶ 25-26). A notation on the grievance form dated July 22, 2008 indicates that the union later withdrew Nichols's grievance. R. 137-31 at 2.
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir.2013). 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." Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir.2013). 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
As an initial matter, the Court will address IDOT's oral motion to strike the Williams Affidavit. At the hearing held on IDOT's motion for summary judgment,
The Court disagrees with IDOT that Nichols's failure to disclose Williams is the equivalent of IDOT's failure to disclose Romanski. If in fact Nichols disclosed Williams in his interrogatory answers, his failure to disclose Williams in his initial disclosures was harmless. Ultimately IDOT received notice that Nichols might rely on Williams as a witness having knowledge of relevant facts prior to the summary judgment briefing. In contrast, IDOT never disclosed Romanski as having relevant knowledge prior to submitting his affidavit in support of summary judgment. Counsel for IDOT informed the Court at oral argument that she could not speak to whether Williams in fact was disclosed in Nichols's interrogatory responses. Because IDOT has not contested otherwise, the Court will rely on the representation of Plaintiff's counsel that Williams was disclosed in Nichols's interrogatory answers. In any event, however, since Nichols also submitted the affidavits of several other individuals whose testimony was similar to Williams' testimony, even if the Court were to strike the Williams Affidavit, that would not have any effect on the outcome of IDOT's motion for summary judgment.
It appears from the amended complaint that Nichols is alleging that IDOT is liable under Title VII for failing to accommodate his religious practices, for discriminating against him based on his religion, and for retaliating against him based on his engagement in statutorily protected activities. The Court will discuss IDOT's motion for summary judgment on each of these claims in turn.
Title VII prohibits employers from "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]" 42 U.S.C. § 2000e-2(a)(1). Title VII defines "religion" as "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to [sic] an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j). "The statutory definition of `religion' in Title VII is drafted as an unusual blend. It combines a broad substantive definition of religion with an implied duty to accommodate employees' religions and an explicit affirmative defense for failure-to-accommodate claims if the accommodation would
IDOT argues that Nichols has failed to establish any of the three elements of a prima facie case of failure to accommodate. First, IDOT argues that Nichols's stated religious practice — prayer in a quiet place — did not conflict with his job duties as a Highway Maintainer. R. 136 at 14. Nichols testified that it takes him approximately seven minutes to pray, and that a normal work break provided a sufficient length of time to pray. Nichols was afforded three work breaks — morning, afternoon, and lunch. Nichols testified that he had worked for IDOT for approximately ten years, and that, in the past, he had been able to pray during his breaks. Therefore, IDOT concludes, Nichols's religious practices did not conflict with his employment requirements.
IDOT's argument ignores that Nichols also testified that, although he previously had found sufficient time to pray during his breaks, in early 2008 he felt he needed to pray more frequently because of the stress he was experiencing while serving as acting lead worker. In addition, because the conditions of his job had changed, he could no longer pray during the same times or in the same places as he had before. Nichols testified that prayer on the road while he was acting lead worker was impossible because his supervisors always required him to have other workers in his truck. Nichols stated that ideally he wanted permission to return to the yard for brief periods during the day to pray in a quiet place alone. The Court finds that this testimony creates a disputed issue of fact as to whether Nichols's need to pray during the workday in 2008 while he was acting as temporary lead worker conflicted with his job requirements in that position.
Second, IDOT argues that Nichols failed to properly notify IDOT of his religious requirements because he never specifically told his supervisors that in order to properly pray during the workday he needed to be alone in a quiet place and that he would prefer to return to the yard once or twice a day as the best means by which he could accomplish praying in the proper manner. See R. 136 at 14. IDOT misperceives the notice requirement. As the Seventh Circuit has explained, Title VII does not "require adherence to a rigid script[.]" Adeyeye, 721 F.3d at 450. Rather, "Title VII, like the Americans with Disabilities Act [ADA], was written to deal with real communications between employees and managers, and the law expects both to be reasonable." Id. The employee's request satisfies the notice requirement if it is sufficient "to alert the employer to the fact that the request is motivated by a religious belief." Id. Nichols's grievance stated that "the hours spent on the road disallows time for at least 2 prayer sessions," and that he "would appreciate if arrangements could be made for [him] to practice [his] religion in the proper manner." R. 137-11 at 2. These statements
Finally, IDOT argues that Nichols has failed to establish the last requirement of a prima facie religious accommodation case because there is no evidence in the record to suggest that the religious observance or practice in question was the basis for Nichols's discharge. The last requirement of a prima facie case presents somewhat of a problem, which neither party has squarely addressed. As previously noted, the formulation most frequently cited by the Seventh Circuit for the last requirement of a prima facie case is that the plaintiff must show that the religious observance or practice was the basis for the plaintiff's "discharge or other discriminatory treatment." Ilona of Hungary, Inc., 108 F.3d at 1575. But Seventh Circuit case law gives very little guidance as to what the term "discharge or other discriminatory treatment" means. On the one hand, the concept might be the same as the term "adverse employment action," as interpreted and applied in Title VII disparate treatment cases. Indeed, some of the cases in this circuit do use the term "adverse employment action" in place of the term "discharge or other discriminatory treatment" for the third prerequisite to a plaintiff's prima facie religious accommodation case. See, e.g., Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 478 n. 2 (7th Cir.2001) (citing EEOC v. United Parcel Serv., 94 F.3d 314, 317 (7th Cir.1996)). But these cases appear to invoke the adverse employment action requirement without consciously considering whether that term is appropriate in the context of a religious failure to accommodate case. Since such cases generally deal with obvious adverse employment actions — e.g., Adeyeye, 721 F.3d at 447 (termination); Xodus, 619 F.3d at 684 (refusal to hire) — they cannot be said to stand for the proposition that an adverse employment action is required. See Stanek v. St. Charles Cmty. Unit Sch. Dist. No. 303, 783 F.3d 634, 640 (7th Cir. 2015) ("unexamined assumptions of prior cases do not control the disposition of a contested issue").
Several other circuits have held that an adverse employment action is required in a religious failure to accommodate case, although it is not entirely clear whether those circuits ascribe the same meaning to that term as does the Seventh Circuit.
While not discussing the issue, the Seventh Circuit's opinion in Porter, 700 F.3d 944, suggests that an adverse employment action is not required in a religious failure to accommodate case. There the court based its affirmance of the district court's denial of the plaintiff's failure to accommodate claim on a finding that the employer had offered a reasonable accommodation. But the court also affirmed the district court's denial of the plaintiff's disparate treatment claim, doing so based on a finding that the plaintiff had not alleged an adverse employment action. If an adverse employment action was required for the religious accommodation claim as well as for the religious disparate treatment claim, then presumably the court would not have had to reach the issue of whether the employer's accommodation of the plaintiff's religious beliefs was reasonable.
Also lending support to the argument that an adverse employment action is not required in a religious failure to accommodate case is the Seventh Circuit's jurisprudence under the ADA. The Seventh Circuit generally applies similar standards in religious failure to accommodate cases and disability failure to accommodate cases. E.g., Adeyeye, 721 F.3d at 450. Whereas the Seventh Circuit requires an adverse employment action for a disparate treatment claim under the ADA, it does not impose the same requirement in the context of a failure to accommodate claim under the ADA. Instead, to survive summary judgment on a failure to accommodate claim under the ADA, the third element of a plaintiff's prima facie case requires the plaintiff to point to evidence that, if believed by a jury, would demonstrate only that "his employer failed to reasonably accommodate that disability." Reeves ex rel. Reeves v. Jewel Food Stores, Inc., 759 F.3d 698, 701 (7th Cir. 2014). It makes sense, therefore, that proof that an employer failed to accommodate a conflicting religious practice in circumstances where an accommodation would not impose an undue burden also would be sufficient in and of itself to support a religious failure to accommodate claim, without the necessity of the employee showing that he also suffered some separate adverse employment action as that term is used in disparate treatment cases.
If an adverse employment action is required for Nichols to establish a prima facie religious failure to accommodate claim, then perhaps he has satisfied that
Notwithstanding IDOT's argument, IDOT's summary judgment papers simply assume that an adverse employment action is required without any analysis of that issue. The Court therefore finds either that an adverse employment action separate from IDOT's failure to accommodate is not required, or that the evidence is disputed as to whether IDOT's termination of Nichols's employment was motivated in part by his request for a religious accommodation.
Assuming that Nichols can establish a prima facie case for his failure to accommodate claim, the next issue is whether IDOT either offered him a reasonable accommodation or else can establish undue hardship. IDOT admits it did not offer Nichols any accommodation for his request to pray. Instead, IDOT argues it was not required to offer Nichols any religious accommodation because it can show undue hardship. Undue hardship exists when a religious accommodation would cause "more than minimal hardship to the employer or other employees." Endres v. Ind. State Police, 349 F.3d 922, 925 (7th Cir.2003). "[A]n accommodation that requires other employees to assume a disproportionate workload (or divert them from their regular work) is an undue hardship as a matter of law." Noesen v. Medical Staffing Network, Inc., 232 Fed.Appx. 581, 584-85 (7th Cir.2007). IDOT argues that accommodating Nichols's prayer request would impose more than minimal hardship on both IDOT and other IDOT employees because it would be operationally prohibitive for IDOT to allow Nichols to leave his work location on the road to return to the yard at least twice a day. According to IDOT, allowing Nichols to return to the yard would put a scheduling strain on IDOT and result in extra costs and disruptions to the entire work crew. See R. 136 at 16.
IDOT relies on the conclusory assertions of its management personnel to the effect that it would be an undue hardship on IDOT to allow Nichols to return to the yard twice a day to pray. The individuals who make this assertion, however, do not provide any concrete factual support for it. Moreover, the conclusory assertions
In addition to the above, a disputed issue of fact exists on the question of undue hardship because a reasonable jury could question IDOT's good faith in asserting undue hardship. IDOT's good faith is at issue because IDOT admits it never engaged in any dialogue with Nichols about his request for an accommodation. SeeR. 158 at 7.
IDOT "bears the burden of proof, so it must show, as a matter of law, that any and all accommodations would have imposed an undue hardship" on the conduct of its business. Adeyeye, 721 F.3d at 455. The proof submitted by IDOT in support of summary judgment on this issue is insufficient to warrant a finding as a matter of law in IDOT's favor. Accordingly, summary judgment in favor of IDOT on Nichols's failure to accommodate claim is denied.
To withstand summary judgment on a disparate treatment claim, a plaintiff must show that he suffered an adverse employment action and that the action was the product of discrimination. Chaib v. Indiana, 744 F.3d 974, 981 (7th Cir.2014). There is no dispute that Nichols suffered an adverse employment action when he was fired. The only question is whether he was fired because of his religion.
"Under Title VII, a plaintiff can prove discrimination either by presenting evidence of discrimination (the `direct method' of proof), or by the McDonnell Douglas burden-shifting approach (the `indirect
"Under the direct method of proof, a plaintiff's claim survives summary judgment if [ ]he can demonstrate triable issues as to whether discrimination motivated the adverse employment action." Darchak, 580 F.3d at 631 (internal quotation marks and citation omitted). "The focus of the direct method of proof ... is whether the evidence points directly to a discriminatory reason for the employer's action." Atanus v. Perry, 520 F.3d 662, 671 (7th Cir.2008). Discriminatory intent can be shown either through direct evidence, such as an admission that the motive was discriminatory, Darchak, 580 F.3d at 631, or by "circumstantial evidence which suggests discrimination albeit through a longer chain of inferences," Luks v. Baxter Healthcare Corp., 467 F.3d 1049, 1052 (7th Cir.2006). "Examples of circumstantial evidence that might suggest intentional discrimination are suspicious timing, ambiguous statements, comments directed at employees in the protected group, and examples of similarly situated employees outside the protected class who received better treatment." Nehan v. Tootsie Roll Indus., Inc., 621 Fed.Appx. 847, 850 (7th Cir.2015). IDOT argues that there is no direct or circumstantial evidence that Nichols's termination had anything to do with his religion. Rather, according to IDOT, "it is undisputed" that Nichols was discharged for cause because he violated IDOT's policy against violence in the workplace. R. 136 at 10. The Court disagrees, and instead finds that Nichols has assembled a number of pieces of evidence, none perhaps dispositive in itself, but that taken as a whole point in the same direction and thus provide adequate support to avoid summary judgment. See Sylvester v. SOS Children's Villages Ill., Inc., 453 F.3d 900, 903 (7th Cir.2006).
Nichols testified that he was the only Muslim at the Harvey Yard and that he was treated differently than other workers, who were not Muslim.
Nichols's testimony regarding differential treatment is similar to the plaintiff's testimony in Anderson v. Advocate Health & Hospitals Corp., 2014 WL 4922371 (N.D.Ill. Sept. 29, 2014). In that case, the plaintiff, who was black, also alleged that her employer used an incident of workplace violence as a pretext for firing her.
IDOT attempts to distinguish Anderson on the ground that it was disputed in that case whether the plaintiff actually punched a co-worker. R. 157 at 10. But the court's denial of summary judgment did not turn on that dispute. Instead, the dispute over whether the alleged act of violence actually occurred merely was one of several factors that contributed overall to the court's finding that a factual issue existed for the jury to resolve regarding the employer's discriminatory intent.
Moreover, although there is no dispute here that Nichols's sent the April 2, 2008 fax, there is a dispute regarding the seriousness of the "threats" contained in the fax. A reasonable jury could disagree with IDOT's position that the fax represents a "straight[-]forward threat of violence." R. 137 at 9 (¶ 68). To begin with, Fulgenzi's deposition testimony regarding IDOT's determination that the fax contained a "straight-forward threat of violence" was equivocal on this point.
In addition, the jury might consider "[t]he special context in which [Nichols] expressed [his] anger," Coleman v. Donahoe, 667 F.3d 835, 855 (7th Cir.2012) — to the EAP/Labor Relations office — to be important in assessing the level of seriousness of the threats contained in the fax (and hence the credibility of IDOT's stated reason for terminating Nichols). For instance, the jury reasonably might conclude that the statements in the fax were not "true threats," similar to the Seventh Circuit's reasoning in Coleman, where the plaintiff had told her psychiatrist that she had fantasized about killing her boss. Id. at 856 (finding it "troubling to think that anyone who confides to her psychiatrist... could automatically be subject to termination for cause"). The Seventh Circuit acknowledged that the employer in that case would have had reason to be concerned if the plaintiff had expressed to her psychiatrist "a genuine and ongoing intent to harm another person." Id. But the record
Finally, in assessing the severity of the threats in the fax, the jury might consider the fact that the language used by Nichols to convey the so-called "threats" mimics the language Nichols claimed in the fax that his supervisors used when they made threatening statements against him. A reasonable jury could conclude that the statements in Nichols's fax for which he was fired do no more than reflect the way employees at the Harvey Yard talked to each other all the time. See Sumner v. U.S. Postal Serv., 899 F.2d 203, 210 (2d Cir.1990) ("even accepting the Postal Service's account of the May 2 incident, Sumner's response to Montemarano does not rise to the level of insubordination that would warrant firing, particularly when considered in light of the history of interactions between Sumner and his supervisors and what appears from the record to be the milieu of the office"); see also N.L.R.B. v. Mueller Brass Co., 501 F.2d 680, 686 (5th Cir.1974) ("Blanton's abusive outburst at Gray ... was understandable. Expression of his anger in the language of the mill is not nearly as shocking to us as respondent's counsel would suggest.").
In sum, given all of the above, the Court declines to make a legal determination that the fax contained a "straight[-]forward threat of violence," and will leave that issue for the jury to decide.
In addition to evidence of disparate treatment, Nichols also has presented testimony from some of his co-workers that Martin, who is a Baptist (R. 137-7 at 45), had strong religious views, which he affirmatively promoted while performing his duties at the Harvey Yard. According to several of Nichols's co-workers, Martin "would arrive to work and leave work with the Holy Bible in his hand," would began meetings with a prayer, kept an open Bible on his desk, and would refer to Bible passages to make a point. R. 149-4 at 1 (Perryman Affidavit, ¶¶ 4-9).
IDOT argues the Court should ignore the affidavits of Nichols's co-workers because they are "inadmissible." R. 157 at 8.
IDOT also objects on the basis of hearsay, see R. 158, but the statements in the co-workers affidavits appear to be based on personal knowledge. To the extent that any of the co-workers relate an out-of-court conversation or statement, the conversation or statement is not hearsay because it is not being offered for the truth of the religious matters asserted. For instance, one affiant's statement that Martin said that God appeared to him in his dreams is not offered to prove that God actually appeared to Martin in his dreams. Finally, IDOT asserts that the statements in the co-workers affidavits to the effect that Martin began meetings with a prayer "constitute inappropriate opinion testimony." R. 158 at 11-12. It is not clear to the Court how these statements, which describe events or conduct personally witnessed by the affiants, constitute opinion testimony. In any event, the Court notes that, pursuant to Federal Rule of Evidence 701, a lay witness may testify to an opinion that is "rationally based on the witness's perception and helpful to clearly understanding
IDOT raises two other reasons why the co-workers affidavits are insufficient to preclude summary judgment in its favor. The first is that the co-workers affidavits are irrelevant because Nichols was terminated for making a threat, not because of his religion. That argument is unavailing because Nichols offers the co-workers affidavits concerning religion in the workplace as evidence that his April 2, 2008 fax was not the real reason for his termination. "[W]hat role if any [Nichols's] religion... played in h[is] discharge [as opposed to the reasons given by IDOT for his discharge] is a question that the jury must sort out." Venters v. City of Delphi, 123 F.3d 956, 974 (7th Cir.1997) (holding that the city's evidence as to the legitimate reasons for terminating the plaintiff did not eliminate all doubt as to whether religion played at least a motivating role in the plaintiff's discharge) (citing Blalock v. Metals Trades, Inc., 775 F.2d 703, 708-09 (6th Cir.1985) (evidence that company owner was willing to give special consideration to those who shared his religious views, and withheld that consideration from those who did not, constitutes direct evidence that religion played a role in plaintiff's discharge))).
IDOT's other argument is that the religious proclivities of Martin and others at the Harvey Yard are irrelevant because Nichols was terminated by upper management personnel (Stumpner, Fulgenzi, Iacullo, and O'Keefe). Generally speaking, IDOT is correct that comments by a non-decision maker do not suffice as evidence of discriminatory intent. See Williams v. Seniff, 342 F.3d 774, 790 (7th Cir.2003). However, the Seventh Circuit has "qualified" this principle, id. to say that if the person in question has input into the decision then a reasonable jury might "infer that the decision makers were influenced by [that person's] feelings in making their decision." Hunt v. City of Markham, 219 F.3d 649, 653 (7th Cir.2000); see also Lewis v. City of Chicago, 496 F.3d 645, 652 (7th Cir.2007) (because individual was involved in the decision-making process, his comments "qualify as direct evidence of discrimination").
There is sufficient evidence in the record for a reasonable jury to conclude that Martin had input in the decision to place Nichols on suspension pending decision to discharge.
In addition to the above, Fulgenzi testified that he had to rely primarily on the input he received from Nichols's chain of command in deciding whether to terminate Nichols because he personally did not have any knowledge about Nichols's behavior. When asked what information he obtained from his consultation with Nichols's chain of command was most important to his decision to recommend termination, Fulgenzi responded that he was impressed by the fact that Nichols's supervisor appeared to be extremely concerned over his own safety after Nichols sent the April 2, 2008 fax, to the point where that supervisor reported his safety concerns to the police. R. 136-6 at 52-53 (Fulgenzi Dep. 51-52). Again, the supervisor in question was Martin.
Finally, Fulgenzi also suggested that it was up to the employee's immediate supervisor to decide whether to report a particular incident, even one involving violence or threats of violence, as a violation of IDOT's policy against workplace violence. SeeR. 136-6 at 57 (Fulgenzi Dep. 56). Iacullo similarly testified that an employee's immediate supervisor has discretion to deal with an incident that otherwise could have been written up as a violation of IDOT's policy against workplace violence by imposing remedial measures short of a citation for violating the policy to avoid the employee being discharged.
Another piece of evidence that a reasonable jury could take into account in deciding whether IDOT was motivated by discrimination when it decided to terminate Nichols for a violation of the policy against workplace violence is that IDOT never took any steps to investigate threats of violence against Nichols. Nichols's testimony and his April 2, 2008 fax both describe how Nichols sent the fax in response to threats of violence that were made against him. Nichols's fax further described how Nichols had attempted to address the threats in a proper manner by contacting the EAP. Not only did the EAP not offer any help to Nichols, but it referred
Courts that have addressed similar situations have said that "[w]here the employer provokes a reaction from an employee, that reaction should not justify a decision to impose a disproportionately severe sanction." Sumner, 899 F.2d at 210. IDOT asserts in a conclusory manner that "the record is clear" that Nichols "was not `ignored,' nor did IDOT do anything to provoke him into violating its policy against work-place violence." R. 157 at 10 n.9. But the record contains sufficient evidence as already has been discussed for that question to be put to the jury.
The Eighth Circuit's opinion in Excel Corp. v. Bosley, 165 F.3d 635 (8th Cir. 1999), is a good example of the provocation principle as applied in the Title VII context. There the plaintiff worked at the same meat packing plant as her ex-spouse. At trial, the plaintiff introduced evidence that her ex-spouse subjected her to sexual harassment during confrontations at work, such as calling her "bitch," "slut" or "whore," and threatening to kill her current husband. Id. at 637-38. The plaintiff repeatedly reported the unwelcome harassment and her fear of her ex-husband's temper to the defendant's management. Id. at 638. On one particular day, the plaintiff's ex-husband was near the plaintiff's work station calling her names such as "fucking bitch." The plaintiff asked the floor supervisor to relieve her temporarily from her work station, but the supervisor refused, despite knowledge of the harassment and the plaintiff's ex-husband's proximity to the plaintiff. The plaintiff's ex-husband continued to harass the plaintiff, and, out of frustration, the plaintiff pushed him "once in the chest and told him to get out of the area and go back to his assignment." Id. The plaintiff was sent to the supervisor's officer and told she was being placed under "indefinite suspension" for violating a work rule against physical contact between employees. Upon leaving the work floor, the plaintiff saw her ex-husband in another room. Believing that he was not being sanctioned as strongly as she was, if at all, the plaintiff pushed past a supervisor to enter the room to talk to her ex-husband. This incident was reported as the plaintiff having struck a supervisor. These events then formed the basis for the defendant's decision to terminate the plaintiff. The ex-husband did not receive any sanction.
In upholding the jury's verdict in favor of the plaintiff on her discrimination claim, the Eighth Circuit said:
Id. at 638-39 (citations omitted).
In addition to the above, Nichols has presented evidence of similarly situated employees who engaged or may have engaged in conduct that could or should have fallen under IDOT's policy against workplace violence but who Nichols claims or believes were not terminated for their conduct. IDOT asserts that it is Nichols's burden of proof to establish whether any of the alleged comparators in fact were similarly situated but not terminated, and that the evidence in the record identified by Nichols concerning the comparators is insufficient to meet this burden.
The Court acknowledges that there may be some evidentiary issues regarding some of the alleged similarly situated comparators which will have to be resolved if this case goes to trial. For purposes of IDOT's summary judgment motion, however, the Court concludes that at least some of the evidence submitted by Nichols — including Nichols's own testimony, an affidavit of his counsel, and documents produced by IDOT — is sufficient to create a disputed issue of fact as to whether IDOT treated similarly situated employees differently than Nichols. For instance, Nichols reported that Reynolds was threatening him with bodily harm, yet Fulgenzi admitted nothing was done to look into those threats and that Reynolds is still working for IDOT. See R. 136-6 at 183-84 (Fulgenzi Dep. 182-83); see also R. 149-5 at 2 (¶ 9). Inexplicably, IDOT claims that Nichols's report that Reynolds threatened him by saying that Nichols was going to "get himself fucked up" was too "vague" of a threat to warrant investigation, while at the same time arguing that Nichols's statement in the April 2, 2008 fax that "someone in the Harvey year is going to get `fucked up'" was "a straight[-]forward threat of violence" warranting Nichols's termination. See R. 149-8 at 2-5 (¶¶ 2, 3) (Defendants' Response To Plaintiff's Requests To Admit). A reasonable jury may find it difficult, as the Court has, to reconcile those two positions.
Another comparator is an employee named Stephen Cameron, who was formally charged with a threat of violence when he "made several harassing and/or threatening phone calls to the Department[`]s EAP Coordinator and the District 6 Acting Personnel Manager," including voice mails stating that he had guns, that the EAP coordinator "[g]ot [him] thrown out of [his] house," that he knew what she looked like and where she lived, and that he wanted to
The similarly situated analysis requires a context-based examination of all relevant factors, and the Seventh Circuit has said that it "ought not be construed so rigidly or inflexibly that it [becomes] a useless analytical tool." South v. Ill. Envtl. Protection Agency, 495 F.3d 747, 752 (7th Cir.2007). The similarly situated inquiry "simply asks whether there are sufficient commonalities on the key variables between the plaintiff and the would-be comparator to allow the type of comparison that, taken together with the other prima facie evidence, would allow a jury to reach an inference of discrimination[.]" Id. (internal quotation marks and citation omitted) (emphasis in original).
In Coleman, 667 F.3d 835, the Seventh Circuit considered factual circumstances very similar to those here. The United States Postal Service terminated a black female employee because she told her psychiatrist she was having thoughts of killing her supervisor. The Postal Service said it
IDOT argues that Nichols's alleged comparators are dissimilar for essentially three reasons: (1) some of the comparators were not charged with a violation of IDOT's policy against workplace violence, like Nichols was; (2) some of the comparators were accused of violence or threats of violence in a "he said/she said" situation, versus Nichols, who made threats of violence in a fax sent to the EAP and the Office of Labor Relations; and (3) some of the comparators had their discipline reversed or reduced through remedial action such as anger management or therapy, or as a result of a successful or partially successful grievance proceeding. These arguments are without merit.
First, the fact that some of the comparators were not charged with a violation of IDOT's policy against violence in the workplace is not a basis for arguing dissimilarity. As the Seventh Circuit explained, "the critical question" for deciding "whether two employees have engaged in similar misconduct ... is whether they have engaged in conduct of comparable seriousness." Coleman, 667 F.3d at 851 (emphasis added) (internal quotation marks and citation omitted). The relative comparison, therefore, is between Nichols's conduct and the conduct of the comparator. "[C]ompany discipline rules are not conclusive indicators of comparable seriousness." Johnson v. Artim Transp. Sys., Inc., 826 F.2d 538, 543 (7th Cir.1987). Moreover, "precise equivalence in culpability between employees is not the ultimate question." Coleman, 667 F.3d at 850. It goes without saying that actual violence is much more serious and explicit than threats of violence, even if the threat of violence is made in a fax sent to the EAP and Labor Relations Office. Some of Nichols's comparator evidence involves employees who engaged in actual violence but were not terminated. Other comparators were accused of making threats that were more serious than Nichols's alleged threats, and not couched in terms of self-defense as Nichols's fax was. The fact that some of these comparators may not have been charged with a violation of the policy against workplace violence does not show a lack of similarity. If anything, that fact could be cited by Nichols as additional evidence of discrimination against him.
Second, the "he said/she said" nature of some of the alleged comparators also is not a valid basis for concluding that a comparator is too dissimilar for a jury to infer discriminatory intent from the disparate treatment. IDOT appears to contend that the unique fact that Nichols's threats were made in a fax sent to the EAP and Labor
Third, the fact that some of the comparators had their discipline reversed or reduced through remedial action such as anger management or therapy, or as a result of a successful or partially successful grievance proceeding, also cannot be a basis for finding those comparators to be dissimilar. IDOT has taken the position in this litigation that Nichols was fired because IDOT has a "zero tolerance" policy against violence or threats of violence in the workplace. But if IDOT does have a "zero tolerance" policy, then allowing an employee to avoid discharge for any reasonwould conflict with that policy. In addition, the very fact that other employees were allowed to reduce their punishment through remedial actions such as anger management or therapy, or through the grievance process, raises the question of why Nichols was not allowed to do the same.
In sum, Nichols's evidence of similarly situated co-workers suggests that the IDOT "decision-makers here did not take the rule against threats as seriously as they claimed." Coleman, 667 F.3d at 853. IDOT is certainly entitled to make the argument that Nichols was not similarly situated to the comparators based on non-discriminatory reasons such as those articulated by IDOT in its summary judgment briefing. But ultimately it is up to the jury to decide whether to believe IDOT's argument or whether to conclude that the only rational explanation for the difference in treatment is that Nichols was discriminated against because of his Islamic faith.
Finally, evidence regarding IDOT's stated reason for terminating Nichols — its "zero tolerance" policy — may actually support an inference of discriminatory intent in this case. Fulgenzi testified that his job as personnel manager was simply to apply IDOT's "zero tolerance" rule to charges of workplace violence or
In Coleman, the Seventh Circuit noted that disparate application of the employer's "no tolerance policy" is evidence of pretext. There the Postal Service argued that it believed the plaintiff was a greater threat than two alleged comparators who were not terminated for actual violence, because the Postal Service viewed the comparators' behavior as "an `isolated instance' where `no particular threats were involved.'" 667 F.3d at 851. The Seventh Circuit said in response:
Id.
To show pretext for an employer's stated legitimate reason for an adverse employment action, the employee "must identify such weaknesses, implausibilities, inconsistencies, or contradictions" in the employer's proffered reason such "that a reasonable person could find [it] unworthy of credence." Id. at 852 (alteration in original). Based on weaknesses, implausibilities, inconsistencies, and contradictions in the way IDOT articulates and applies its stated "zero tolerance" policy, the jury might conclude that in this case IDOT used the concept of "zero tolerance" as a pretext for discrimination.
In summary, this case is not like others in which courts have determined that a plaintiff had shown animosity or problems between himself and his supervisor but had not shown that the animosity was tied in any way to a discriminatory motive, see, e.g., Hopkins v. Bd. of Educ. of City of Chi., 73 F.Supp.3d 974, 986 (N.D.Ill.2014)
Nichols's final claim is that IDOT retaliated against him for engaging in protected activity under Title VII. A claim of retaliation under Title VII is analyzed under the same direct/indirect framework as a claim of discrimination. Porter, 700 F.3d at 957. Like Nichols's disparate treatment claim, the Court will address Nichols's retaliation claim under the direct method of proof. Under the direct method of proof, Nichols must produce evidence from which a reasonable jury could conclude: (1) that he engaged in a statutorily protected activity; (2) that he suffered a materially adverse action by his employer; and (3) there was a causal link between the two. Id. "Whether [the court] appl[ies] this method formally or just cut[s] to the chase and ask[s] the fundamental question directly — could a reasonable trier of fact infer retaliation? — makes no difference." Castro v. DeVry Univ., Inc., 786 F.3d 559, 564 (7th Cir.2015).
The first element requiring a materially adverse employment action is satisfied by Nichols's termination. The question is whether Nichols has engaged in protected activity causally linked to his termination.
Nichols filed a grievance requesting a religious accommodation, which clearly constitutes protected activity. To establish a material issue of genuine fact whether Nichols's religious accommodation request caused his termination, Nichols relies on circumstantial evidence. "Circumstantial evidence suffices if a convincing mosaic of circumstantial evidence would permit a reasonable trier of fact to infer retaliation by the employer. In retaliation cases, [the Seventh Circuit] [has] recognized three categories of circumstantial evidence available to a plaintiff using the `convincing mosaic approach.' These categories include (1) evidence of suspicious timing, (2) evidence that similarly situated employees were treated differently, and (3) evidence that the employer's proffered reason for the adverse employment action was pretextual." Castro, 786 F.3d at 564-65 (internal quotation marks and citations omitted). The Court already has identified substantial evidence under the last two categories in its discussion of Nichols's disparate treatment claim; much of this same evidence is relevant to Nichols's retaliation claim as well. See also, R. 150-15 (Williams Affidavit, ¶¶ 5-6) (affidavit of co-worker testifying that he has heard Romanski complain on several occasions in the presence of Reynolds and Martin about Nichols requesting an accommodation to pray, and asking "why does he want special privileges to pray").
In addition to this evidence, Nichols can add evidence of suspicious timing. The Seventh Circuit has "rejected any bright-line rule about how close the events must be to establish causation, but in cases where there is corroborating evidence of retaliatory motive, an interval of a few weeks or even months may provide probative evidence of the required causal nexus." Id. at 565 (internal quotation marks and citation omitted). Nichols was suspended pending a decision to discharge less than a month after he filed his grievance requesting a religious accommodation. Therefore, Nichols has met his burden on summary judgment of producing evidence on causation sufficient to present this retaliation claim to the jury.
In addition to his request for a religious accommodation, Nichols's complaints to IDOT about differential treatment and harassment by his supervisors also might satisfy the protected activities component of Nichols's retaliation claim. Complaints of discrimination are statutorily protected activity, but the "complaint must indicate the discrimination occurred because of ... some ... protected class. Merely complaining in general terms of discrimination or harassment, without indicating a connection to a protected class or providing facts sufficient to create that inference, is insufficient." Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir.2006) (citations omitted). IDOT argues that Nichols never told his supervisors that he believed the reason for his differential treatment was religious discrimination. As the court in Weintraub v. Mental Health Auth. of St. Mary's, Inc., 2010 WL 4868095, at *6 (D. Md. Nov. 23, 2010), stated, however, it is not necessary that the plaintiff "utter ... magic words" in opposing an employer's discriminatory conduct if the context of the plaintiff's complaints allow a reasonable inference that it is. See, e.g., Lerman v. Turner, 2013 WL 4495245, at *15 (N.D.Ill. Aug. 21, 2013) (Tomanovich inapplicable where attention was drawn to fact that individual who was terminated was Palestinian such that reasonable inference could arise that the alleged discrimination was based on anti-Arab sentiment).
The Court also finds support in the case law that asserting self-defense against threats of violence directed against an individual because of his religion is itself protected activity (as opposed to the protected activity being the communication complaining about unlawful discrimination). In Van Horn v. Specialized Support Services, Inc., 241 F.Supp.2d 994 (S.D.Iowa 2003), an employee working with a special needs population was subjected to ongoing inappropriate sexual conduct by a twenty-one year old male client with Down's syndrome. Id. at 999-1002. The plaintiff notified her supervisor and later expressed concern at a staff meeting, but she was offered no assistance or guidance and no action was taken by her employer to address the ongoing situation. Id. at 1001. The problem continued to escalate, and culminated when the plaintiff "instinctively slapped" the client after he inappropriately pinched her breast. Id. at 1004. Based on the purported justification that "slapping a mentally retarded person was never justified," the plaintiff's employment was terminated. After recognizing that Title VII certainly does not grant employees a free license to unreasonably engage in violence to protest discrimination, the Court concluded,
Id. at 1012-13.
If Nichols had a protected right, as the above passage suggests, to defend himself against violence directed at him because he is a Muslim, then his verbal assertion of that right in the April 2, 2008 fax also would constitute oppositional activity protected by the anti-retaliation provision of Title VII. As the Van Horn court observed, an employer is "certainly free to maintain [a] `zero-tolerance' policy," but "it cannot do so without also protecting its workers from unlawful harassment. To allow an employer to ignore clear warning signs and then terminate an employee who resists sexual harassment and assault at the workplace [or, as in this case, who resists threats of violence based on his
Finally, Nichols cites to protected activity occurring in 2007, when he filed an EEOC charge for race discrimination, as well as in 2006, when he filed a claim complaining that employees were harassing him because he was Muslim and that IDOT transferred him for going to his car to pray. While an independent claim of disparate treatment based on these allegations would be time-barred, that does not preclude Nichols from relying on this evidence to support his timely retaliation claim based on his 2008 termination. See Malin, 762 F.3d at 560-61. The problem with Nichols's reliance on this 2006 and 2007 protected activity for purposes of his 2008 retaliation claim is not that such a claim would be time-barred but that the earlier protected activity may be too remote in time to establish a causal connection with Nichols's 2008 termination. Nevertheless, the Seventh Circuit has held "that the mere passage of time `does not conclusively bar an inference of retaliation.'" Castro, 786 F.3d at 565 (quoting Malin, 762 F.3d at 560 (reversing summary judgment for employer where evidence showed patient retaliation over period of several years)). In Malin, the Seventh Circuit cited case law finding retaliation where the protected activity and the plaintiff's termination were separated by up to two years. 762 F.3d at 559. The Court cannot say on the current record as a whole that Nichols's 2008 termination as a matter of law was not proximately caused by Nichols's 2006 and 2007 grievances complaining about race and religious discrimination against him.
It is undisputed that the union filed a grievance on Nichols's behalf to contest his termination. SeeR. 137-31 at 2-3.
R. 137-6 at 61 (Fulgenzi Dep. 60).
In EEOC v. Board of Governors of State Colleges & Universities, 957 F.2d 424, 431 (7th Cir.1992), the Seventh Circuit held that "[a] collective bargaining agreement may not provide that grievances will proceed to arbitration only if the employee refrains from participating in protected activity under the ADEA." Like Section 6.2 in this case, the collective bargaining provision in Board of Governors "authorize[d] [the defendant] to take an adverse employment action (termination of the in-house grievance proceeding) for the sole reason
IDOT argues that Board of Governors is inapplicable here because it was decided twenty-three years ago and because it applies the anti-retaliation provision of the ADEA rather than Title VII. See R. 157 at 20. IDOT does not say on what basis this Court would be free to ignore controlling Seventh Circuit precedent, even if it is from twenty-three years ago. In any event, the Court concludes that the Seventh Circuit's analysis in Board of Governors is just as compelling today as it was in 1992. See, e.g., Trayling v. St. Joseph Cnty. Emp'rs Chapter of Local # 2955, 953 F.Supp.2d 793, 800 (W.D.Mich.2013) (adopting the "cogent" analysis of Board of Governors in holding that an election-of-remedies provision of a collective bargaining agreement violated the anti-retaliation provisions of the ADEA and ADA); Brinkley v. Bd. of Comm'rs of Franklin Cnty., Ohio, 2013 WL 394158, at *5-6 (S.D.Ohio Jan. 29, 2013) (relying on Board of Governors in holding that the plaintiff had "demonstrated a strong likelihood of success of the merits" of her retaliation claims because her grievance was dismissed pursuant to a collective bargaining agreement which prohibited her from maintaining both a grievance and an EEOC charge regarding the same circumstances that led to her removal).
In addition, IDOT does not explain why the fact that Board of Governors involved the anti-retaliation provision of the ADEA rather than the anti-retaliation provision of Title VII is a distinction that matters. As stated in Board of Governors, "[s]tatutory provisions against retaliation such as those in the ADEA and Title VII protect employees' rights to participate in protected activity and aid the work of the EEOC which depends upon employee cooperation." 957 F.2d at 431 (emphasis added); see also Brinkley, 2013 WL 394158, at *5 (applying Board of Governors to Title VII retaliation claim); Portland State Univ. Chapter of Am. Ass'n of Univ. Professors v. Portland State Univ., 352 Or. 697, 291 P.3d 658 (2012) (en banc) (same). IDOT admits that Nichols could have contested his termination through the grievance process or filed a complaint concerning his termination with the EEOC, but not both. Such a policy adversely affects Nichols by "stripping him ... of an employment privilege for filing with the EEOC. Such activity is expressly prohibited by the literally interpreted provisions of both the ADEA and Title VII." E.E.O.C. v. Gen. Motors Corp., 826 F.Supp. 1122, 1126 (N.D.Ill. 1993).
The Court therefore finds that IDOT's invocation of Section 6.2 of the collective bargaining agreement to prevent Nichols from challenging his termination through both a grievance proceeding and an EEOC charge constitutes a per se violation of the anti-retaliation provision of Title VII. Although Nichols has not moved for summary judgment on this claim, the Court has the authority to enter summary judgment on its own motion. See Fed. R. Civ. P. 56(f). Before doing so, however, the Court will permit IDOT to file a supplemental memorandum of law addressing whether any disputed issues of fact would prevent the Court from entering summary judgment in Nichols's favor under the holding of Board of Governors. See Hotel 71 Mezz Lender LLC v. Nat'l Retirement Fund, 778 F.3d 593, 603 (7th Cir.2015) (whenever a court entertains the possibility of summary judgment against a party sua sponte, the court must afford the party
For the reasons stated herein, Defendants' motion for summary judgment [R. 135] is denied. Further, within fourteen days from the date of entry of this order, IDOT may file a supplemental memorandum of law of no more than five pages explaining why the Court should not enter summary judgment against IDOT on Nichols's retaliation claim based on IDOT's denial of Nichols's post-termination grievance. Nichols may file a response brief of the same length within fourteen days thereafter. No reply briefs shall be filed. If IDOT fails to file a supplemental memorandum of law, the Court will assume that IDOT concedes that no factual disputes exist regarding Nichols's retaliation claim based on the denial of his post-termination grievance, and will enter partial summary judgment in favor of Nichols on that claim in accordance with the reasoning set forth in this opinion.
This case is set for a jury trial on June 13, 2016. It was represented by the parties that the trial will last no more than 5 days. The case is set for a status conference on Wednesday, January 27, 2016 at 9:00 a.m. to discuss trial scheduling issues.
