JORGE L. ALONSO, District Judge.
The Chicago Park District ("Park District") moves for entry of judgment as a matter of law in its favor on the claims of Lydia Vega ("Vega") for national-origin discrimination and retaliation under both Title VII and 42 U.S.C. § 1981.
Vega has presented no admissible evidence from which a reasonable jury could find either that that the Park District discriminated against her on the basis of her Hispanic heritage, or that the Park District discharged her in retaliation for her complaint of discrimination. Specifically:
Given the absence of any evidence from which a reasonable jury could find discrimination or retaliation, this Court should enter judgment as a matter of law in favor of the Park District, pursuant to Federal Rule of Civil Procedure 50.
Rule 50 of the Federal Rules of Civil Procedure provides that a court may enter judgment as a matter of law under the following circumstances:
Fed. R. Civ. P. 50. Judgment as a matter of law is appropriate where no rational jury could find for the plaintiff. Harvey v. Office of Banks and Real Estate, 377 F.3d 698 (7
To establish her claim for discrimination on the basis of ethnicity under Title VII or 42 U.S.C. § 1981, Vega must introduce evidence sufficient to allow a reasonable juror to conclude that she would have kept her job if she were not Hispanic, and everything else had remained the same. Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 763-34 (7
In Ortiz, the Seventh Circuit jettisoned the distinction between "direct" and "indirect" methods, as well as the "convincing mosaic" approach, of establishing a prima facie case of discrimination. 834 F.3d at 765. Nevertheless, Vega has introduced no evidence — direct, indirect, circumstantial, mosaic or otherwise — that could allow a reasonable juror to conclude that she was terminated because she is Hispanic.
A plaintiff may attempt to prove discrimination by producing evidence such as an explicit admission that the adverse employment action was motivated by discrimination; or that she belongs to a protected class, was meeting the employer's legitimate expectations, suffered an adverse employment action, and similarly situated employees outside her protected class received more favorable treatment. Vega v. Chicago Park District, 165 F.Supp.3d 693, 700-01 (N.D. III. 2016). The Park District stipulated that Vega belongs to a protected class and suffered an adverse employment action. Vega, however, has failed to present any evidence that the adverse employment action was tied to her status as a Hispanic.
Vega has identified four persons involved in her investigation and discipline: Leroi Catlin, Michael Hester, Mary Saieva and Michael Simpkins. Vega introduced no evidence of any overt discriminatory comments or behavior by any of these persons; indeed, she testified that there were none.
Vega did not know whether the two investigators, Officers Hester and Catlin, conducted investigations any differently for Hispanic employees than for African-American, Caucasian or Asian employees. (Ex. B, 3-7-17 Tr. at 185-86)
The investigators did not conclude that the complaints against Vega were sustained, but instead referred their findings to management for investigation. (Ex. C, 3-8-17 Tr. at 240; Ex. D, 3-9-17 Tr. at 71) The evidence was undisputed that the investigators had no say in whether an employee should be disciplined, or the type of discipline to be imposed. (Ex. D, 3-9-17 Tr. at 94)
Vega has argued that the investigation was "flawed." However, "the question in a discrimination case is not whether the employer's stated nondiscriminatory ground for the action of which the plaintiff is complaining is correct but whether it is the true ground of the employer's action rather than being a pretext for a decision based on some other, undisclosed ground." Forrester v. Rauland-Borg Corp., 453 F.3d 416, 417 (7
Vega, in fact, acknowledged that during the course of the timesheet investigation, Officer Catlin investigated a complaint that Vega had discriminated against African-American park patrons and concluded that the complaint was unfounded. (Ex. B, 3-7-17 Tr. at 187-88) That finding in Vega's favor strongly suggests that the investigators harbored no discriminatory animus toward her.
Vega testified that Mary Saieva, Human Resources Manager for the South Region, did not say anything during her Corrective Action Meeting ("CAM") to suggest that Ms. Saieva was biased against her because she was Hispanic; moreover, Vega presented no evidence that Ms. Saieva conducted CAMs any differently for African-American, Caucasians or Asians. (Ex. B, 3-7-17 Tr. at 176-77)
Vega testified that Michael Simpkins, the Park District's Human Resources Director, made the ultimate decision to discharge her. (Ex. B, 3-7-17 Tr. at 161) Vega further confirmed that she did not know whether Mr. Simpkins was biased against her as a Hispanic. (Ex. B, 3-7-17 Tr. at 162)
Moreover, Vega presented no evidence that similarly-situated non-Hispanic employees were treated more favorably than she was. There was evidence concerning Lester Rivers, an African-American park supervisor who was investigated for timesheet falsification by Officers Hester and Catlin, and then terminated. (Ex. C, 3-8-17 Tr. at 117-18; Ex. D, 3-9-17 Tr. at 100) There was testimony concerning Dina Rutledge, an African-American park supervisor who was investigated for timesheet falsification by Officer Hester, and then terminated. (Ex. D, 3-9-17 Tr. at 100-03) The only inference that can be drawn from these comparators is that the Park District discharges park supervisors who falsify their timesheets, regardless of race or national origin.
Because the Park District is a public employer, Vega must also establish that any injury resulted from a municipal custom or policy. Vega v. Chicago Park District, 958 F.Supp.2d 943, 951 (N.D. III. 2013). The Seventh Circuit has not adopted any bright line rules as to what constitutes widespread custom or policy, except that the alleged unconstitutional conduct "must be more than one instance." Thomas v. Cook Co. Sheriff's Dept., 604 F.3d 293, 303 (7
Vega has presented no evidence to support her allegations. Though she had alleged that Martha Ramirez had been investigated by the Park District and forced to retire, Ms. Ramirez's trial testimony was far different. Ms. Ramirez was park supervisor at Rowan Park, and testified that she was not investigated or disciplined by the Park District prior to her voluntary retirement in 2011. (Ex. B, 3-7-17 Tr. at 8, 9, 15-16) Vega offered the testimony of Elizabeth Milian, who is Hispanic and testified that she was consistently promoted throughout her 30-plus-year career with the Park District, ultimately retiring as the Park District's South Region Manager. (Ex. A, 3-6-17 Tr. at 35) Anita Gilkey testified that Maya Solis, also Hispanic, was named manager of the South Region in 2016. (Ex. A, 3-6-17 Tr. at 46, 80) Ms. Gilkey further testified that she had other Hispanic park supervisors in her area, and none had complained of discrimination, nor had they been disciplined, to her knowledge. (Ex. A, 3-6-17 Tr. at 85-86) And Vega herself testified that, prior to the Park District's discovery of her timesheet falsification, she was consistently promoted. (Ex. B, 3-7-17 at 58-59, 61) Vega's discharge for timesheet falsification, the only instance for which she presented evidence, is insufficient as a matter of law to establish liability under §§ 1981 or 1983.
To establish her retaliation claims under Title VII or §1981, Vega must show that: (1) she engaged in a protected activity; (2) the Park District took an adverse employment action against her; and (3) there was a causal connection between the two. Vega v. Chicago Park District, 165 F. Supp. 3d at 702, 705. Where the decision-maker does not know of the complaint, there can be no causal connection between the complaint and any adverse employment decision. See Hoppe v. Lewis University, 692 F.3d 833, 842 (7
Furthermore, a complaint made while the disciplinary process is underway cannot form the basis for a retaliation claim: "[A] track record of job performance issues prior to the employee's protected activity does not establish circumstantial evidence in support of a retaliation claim." Curtis v. Costco Wholesale Corp., 807 F.3d 215, 221 (7
Vega testified that she does not know whether Mr. Simpkins or Alison Perona received the letter she claims to have mailed on September 4, 2012 before she was terminated six days later. (Ex. B, 3-7-17 Tr. at 165) In fact, she was unable to confirm that the letter was delivered to the Park District at all. (Ex. B, 3-7-17 Tr. at 166) Therefore, Vega has failed to prove a causal connection between any version of her September 4, 2012 letter
Moreover, the September 4, 2012 letter cannot serve as a protected activity supporting a retaliation claim. Witnesses repeatedly testified that the investigation of Vega's timesheet falsification began in September 2011; surveillance was completed by February 2012; the investigators met with Vega three times to flesh out the facts; and Vega attended two CAMs in July and August 2012. Vega testified that during the disciplinary process, she was never told that she would not be terminated. (Ex. B, 3-7-17 Tr. at 169-70) In fact, her union representative, Charles Harper, testified that in his opinion, during Vega's CAMs it was a "foregone conclusion" that Vega would be disciplined. (Ex. E, 3-10-17 Tr. at 26) With the investigation complete and the disciplinary process well under way, Vega wrote to Mr. Simpkins and Ms. Perona, acknowledging that she was facing "discipline up to and including termination" and complaining of "harassment." (PX 219)
An employee in the midst of discipline and facing termination cannot draft a letter, run it past her attorney, and toss it in the mail to protect herself from inevitable discipline. Vega has failed to establish a causal connection between the letter and her termination, and the timing of the letter does not allow for an inference of retaliation. Moreover, Vega has not attempted to introduce evidence suggesting any sort of widespread custom or policy of retaliation sufficient to support a claim under §§ 1981 or 1983. The Park District is entitled to judgment as a matter of law on Vega's retaliation claims.
WHEREFORE, the Chicago Park District asks that the Court enter judgment as a matter of law in its favor on all remaining counts of Vega's complaint.
A. Yes. Can you? Because I'm not sure.
Q. You were recreation leader is what you started at, correct?
A. A summer recreational leader.
Q. Okay. Then you went to a full-time recreation leader?
A. That's correct.
Q. Then you went to a physical instructor, correct?
A. Hourly.
Q. Then you went to a physical instructor —
A. Monthly.
Q. Monthly.
Then you went to playground supervisor, correct?
A. That's correct.
Q. Then park supervisor?
A. Yes, in two facilities.
Q. Okay. Then area manager?
A. That's correct.
Q. And then you ended your career as regional manager, correct?
A. Yes.
Q. So you were promoted quite often, weren't you?
A. Yes.
Q. Yes.
Retiring was your decision; isn't that correct?
A. That is correct.
And Ms. Millan was your supervisor until she retired in 2012?
A. Yes.
Q. Okay. To whom have you reported as — who is the new regional manager after Ms. Millan retired?
A. That's Maya Solis.
Q. Maya —
A. I'm sorry, I'm sorry. After Ms. Millan retired, it was Daphne Johnson.
Q. Daphne Johnson? And for how long was she the regional manager?
A. Maybe four years.
Q. Okay. So from 2012 until about 2016?
A. No, that would be now, right? Okay.
Q. No, we're now in 2017.
A. Okay. That could be right.
Q. Okay. And what ethnic origin was Daphne — sorry —
A. She's black.
Q. — Johnson? Daphne Johnson was black?
A. Yes.
Q. Thank you. And she replaced Ms. Millan, correct?
A. Yes.
Q. Thank you.
And is it correct that the Chicago Park District does not give regular oral or written performance reviews for park
Q. Okay. So if a park supervisor arrived at their park at 9:50, they could spend 10, 15 or 20 minutes in a park as large as Bessemer Park, driving around or getting out of their car and walking around?
A. Yes.
Q. And that would be part of their responsibilities as a park supervisor, correct?
A. Yes, it would.
Q. And they would be on duty while they were doing that, correct?
A. Yes.
MS. SIMMONS-GILL: I have no further questions, your Honor.
THE COURT: Ms. Holzhall? CROSS-EXAMINATION
BY MS. HOLZHALL:
Q. Hi, Ms. Gilkey.
A. Hi.
Q. When Ms. Simmons-Gill was questioning you, you mentioned that the regional manager of the south region is now Mia Solis?
A. Maya Solis.
Q. Maya Solis. Do you know her ethnic background?
A. Yes. She's Hispanic.
Q. Were you ever trained how to fill out a time sheet when
Q. I'd like you — Ms. Simmons-Gill had showed you Plaintiff's Exhibit 224. Those were the time sheets.
And you said that you had signed off on some but not all of them?
A. Yes.
Q. Did you have independent knowledge of the accuracy of these time sheets when you signed off on them?
A. I have to take their word for it that they're accurate.
Q. So you rely on them being accurate?
A. Yes.
Q. Ms. Simmons-Gill had touched on the meeting you had with Ms. Vega and one of the investigators at Bessemer Park.
A. Yes.
Q. What was the atmosphere of that meeting? What was the tone?
A. I would just consider it a neutral tone, like we're talking now and discussing issues.
Q. Did the investigator say anything that you would consider hostile?
A. Not that I recall.
Q. Did the investigator say anything that you would consider discriminatory?
A. Not that I recall.
Q. Did you attend the corrective action meeting for Ms. Vega?
A. No.
Q. During that time period, did you typically attend corrective action meetings for employees that were going through the disciplinary process?
A. Not at that time I don't believe.
Q. Did you put — did you have input into the disciplinary actions against other employees during this time period?
A. No.
Q. That would have all been human resources?
A. Human resources, yes.
Q. Did you at any time speak with Ms. Saieva or Mr. Simpkins regarding Ms. Vega during her disciplinary process?
A. No.
Q. Was there anything about the investigation and discipline of Ms. Vega that you saw that you would consider discriminatory?
MS. SIMMONS-GILL: Object to foundation. There is no testimony that this witness knows anything about the investigation or discipline.
THE COURT: Overruled.
BY THE WITNESS:
A. Can you repeat that?
BY MS. HOLZHALL:
Q. Sure.
Was there anything that you saw about the investigation and discipline of Ms. Vega that you thought was discriminatory against her based on her status as a Hispanic?
A. No, not that I saw.
Q. As an area manager, did you have any authority to discipline or discharge employees?
A. No.
Q. Did the Park District, to your knowledge, have any policy concerning discrimination based on race or gender or other classes?
A. Yes.
Q. Do you know where that policy was published or available to employees?
A. The policy is either in the — the code of conduct, employee discipline book, or the union book.
Q. Does the Park District have any policy concerning retaliation against employees?
A. I just know that we can't do it.
Q. Did Ms. Vega at any time while she was still employed by the Park District tell you that she thought she was being discriminated against because she was Hispanic?
A. No, not that I recall.
Q. Did she ever tell you during that time that she thought that the Park District was retaliating against her?
A. No, not that I recall.
Q. Have you had other Hispanic park supervisors in your area?
A. Yes.
Q. Have any of them complained to you that they felt they were being discriminated against because of their national origin?
A. No.
Q. Have any of them been disciplined?
MS. SIMMONS-GILL: Object, relevance.
THE COURT: Overruled.
BY THE WITNESS:
A. Not to my knowledge.
BY MS. HOLZHALL:
Q. Do you know what kind of car Ms. Vega drove when she drove to Bessemer Park?
A. Yes.
Q. What kind was it?
A. It was a maroon Chevy Trail Blazer.
Q. Did you ever see her driving a different car?
A. Not that I can recall.
Q. Did you ever give Ms. Vega permission to work from home?
A. No.
Q. Why not?
A. It's not allowed. It's — work should be done at work.
Q. You had mentioned — you had testified earlier that the duties of a park supervisor would frequently take them away from the park to which they were assigned. Do you remember that?
A. Sure.
Q. If they were away from the park, how would other people at the park know where they were?
A. They would — they would let their staff know, but they would make sure it's in the logbook. The logbook indicates where they're going, what time and who's going.
Q. So that they know where — where each employee is during the course of the day?
A. Yes.
Q. What have you told your supervisors about use of the logbook?
A. Just that the logbook is like the Bible — I've always learned it was the Bible of the park. Any time you step off of park grounds, you need to put yourself in the logbook so people know where you're going.
Q. Do you know any details of the surveillance of Ms. Vega?
A. No.
Q. Do you know anything about any other interviews of Ms. Vega other than the one that you sat in on?
A. No.
Q. And, again, you didn't sit in on any of her corrective action meetings or the disciplinary proceedings?
A. No.
Q. Were you on good terms with Ms. Vega —
A. Yes.
Q. — during her period as a park supervisor?
A. Yes.
Q. As Ms. Vega's supervisor or her area manager, are you the one that she would have come to if she had any complaints or concerns?
A. If it were an HR matter, she would have said something to HR. If it was something to talk about, then, yes, she probably would have come to me.
Q. I — if there were any complaints about discrimination, would those be made to you, or would those be made to HR, or would they be made to some other person within the Park District?
BY THE WITNESS:
A. Those probably would have gone to HR. I may or may not have been told about that.
BY MS. HOLZHALL:
Q. But if you — if you received one, would you pass it on to HR?
A. Yes.
BY MS. SIMMONS-GILL:
BY MS. SIMMONS-GILL:
Q. Good morning, Ms. Ramirez. Would you please tell the jury your name.
A. My name is Martha Ramirez.
Q. Where do you currently live?
A. I live in Hammond, Indiana.
Q. Thank you.
A. No, I am retired from the Chicago Park District.
Q. Okay. And that was your last employer before you retired?
A. Yes.
Q. Thank you.
And what was your last position with the Chicago Park District?
A. I worked as a supervisor at Rowan Park.
Q. Thank you.
And for how long did you work for the Chicago Park District?
A. I approximately worked 35 years with the Park District.
Q. Did you work all in one continuous stretch or in two separate?
A. I worked two different. I worked 15 years and then I left for six months and then I came back.
Q. And when did you retire?
A. I retired on September 30th, 2011.
Q. And who was your area manager?
A. Anita Gilkey.
Q. Okay. Can you — when you were at the Chicago Park District, did you fill out time sheets?
A. Yes, time sheets were filled out.
Q. And can you tell me what your general practice was in filling them out?
A. We would fill them out on Wednesday — Tuesday or Wednesday and turn them in on Thursday every other week.
Q. Okay. And did you — how did you record your time? Was it exact or —
A. No. Our time sheets, we would sign in 9:00 to 5:00. It always had to be an hour, but we might have worked 8:45 to 4:45 but we would sign 9:00 to 5:00.
Q. And why did you sign in just 9:00 to 5:00 or —
A. Just the practice that was always taught to us.
Q. Okay. Did you some weeks work overtime?
A. I always worked overtime.
Q. And did you record that on your time sheets?
A. No, it was not recorded on time sheets.
Q. Why not?
A. Because we were salary I guess. We had to work whatever
Q. Have you ever seen Lydia Vega's time sheets?
A. Not really, no.
Q. So you have no idea if they were accurate or not, correct?
A. No. Her supervisor would see them, not me.
Q. While you were employed, were you ever investigated for
anything?
A. No. Well —
Q. Okay.
A. — they were questioning some signs that were up, but they found out it was a group that was there that was putting the signs up. It wasn't me so —
Q. That was —
A. They kind of —
Q. — not an investigation directed towards you at —
A. No, they were wondering who was putting the signs up. That's all.
Q. So you have never been investigated for —
A. No.
Q. — any disciplinary —
A. No.
Q. — action —
BY MS. McGARRY:
Q. We have to be careful not to speak over each other here. You retired, correct? You were not terminated by the Park District?
A. I retired.
Q. Okay. Now, at one point in time you testified that you became aware that there were two men surveilling Rowan Park, correct?
A. Yes.
Q. And you never personally spoke to these men yourself; is that correct?
A. No.
Q. So all you knew was what the beat cop had told you, correct?
A. Well, yes, but I seen them. I seen them. I just — I didn't talk to them.
Q. Okay. So you saw them, but —
A. I saw —
Q. — you have no idea what they were —
A. No, I —
THE COURT REPORTER: Hold on.
THE COURT: Ms. Ramirez, please wait until the question is finished before you start answering.
THE WITNESS: Okay. Sorry.
BY MS. McGARRY:
Q. You never spoke to them yourself, correct?
A. No.
Q. Is it possible that these two men were CPD investigators
MS. SIMMONS-GILL: — project.
THE COURT: The problem is with the questions more than the answers?
MS. McGARRY: It's actually the answers, Your Honor.
THE COURT: Ms. Vega, if you could keep your voice up also, please.
THE WITNESS: Yes, sir.
THE COURT: Thank you.
BY MS. SIMMONS-GILL:
Q. You worked for the Chicago Park District; is that correct?
A. I did.
Q. And for how long?
A. 22 years.
Q. And when did you start?
A. I started working as a seasonal rec leader around 1987.
Q. And what — do you count that in the 22 years?
A. No.
Q. When did you start full-time?
A. I started full-time as all-year-around rec leader in 1990.
Q. 1990?
A. Yes.
Q. Thank you.
And what position was that? Full-time rec leader?
A. Full-time rec leader.
Q. And was that hourly or salary?
A. Hourly.
Q. And what was your next position?
A. Hourly instructor.
Q. And approximately when did that second position occur?
A. A couple of years later.
Q. And what was your next position?
A. Monthly physical instructor.
Q. And that was salaried?
A. That was salary.
Q. Yes. And your next position?
A. Playground supervisor.
Q. And what playground, please?
A. Madero playground.
Q. Where was Madero?
A. Madero was around — close to — between 27
Q. And that was your first playground?
A. That was my first playground.
Q. And was there a problem with your salary when you went to that playground?
A. Yes. The previous playground supervisor had two playgrounds that she was taking care of, and there was a salary discrepancy.
Q. And what was the discrepancy?
A. She was getting paid as a park supervisor, and it was supposed to be a playground supervisor.
Q. And what — how did you find out — then did you get the park salary supervisor?
A. Yes. I was pretty impressed that I was getting so much money. I didn't know. But I asked my area manager that I was getting a little bit too much I thought because my other friends were not getting the same amount, so I told her if she could look into it.
Q. And what happened next?
A. She said she would. And she tried several times, and she didn't succeed. I was still getting the salary.
Q. She did not succeed in getting your salary reduced, which is what you were requesting?
A. Yes.
Q. And so what happened next?
A. Then I took it upon myself to go speak to Yvonne. She was the HR manager at the time in the central region. And speak to Betty — I don't know her last name now — who was the finance manager. And I went back and forth between them.
Q. And was it resolved working with the two of them?
A. Eventually they resolved it after probably six times that I asked them.
Q. Okay. So you were — if I'm correct in summarizing — asking them to reduce your salary and you had to make repeated requests for that to occur?
MS. McGARRY: Objection, Your Honor, leading.
THE COURT: Overruled.
BY THE WITNESS:
A. Yes.
THE COURT: Next question.
BY MS. SIMMONS-GILL:
Q. Where did you go after Madero?
A. After Madero, I was — went to Kedvale playground.
Q. That's another playground?
A. Yes.
Q. What kind of playground is that?
A. It was a box in a really bad neighborhood, similar to what Bessemer was, graffiti and gangs.
Q. And how long did you work there?
A. I worked there for a couple of years.
Q. And what did you do next?
A. I was promoted to park supervisor at Bessemer Park.
Q. And how did that come about?
A. It was posted. I had been in the park for a while, and my dream job was to be a park supervisor.
Q. And when it was posted, did you do anything else?
A. Once it was posted and I applied, I went to visit Bessemer Park. I solicited the help of a friend. We went to Bessemer Park, which was in the south side. We eventually found the
A. To make our investigation thorough, so I would have the right person who I was investigating.
Q. And she had shown you several other LEADS reports that you pulled, for instance, in October. Why were those pulled?
A. To thoroughly investigate the investigation to make sure that the person who I was looking for, the vehicles I was looking for, the address for the person at the time was residing at, that all of that was the same.
Q. When investigating other employees for time-related violations or when you're doing surveillance, would you typically pull more than one LEADS report?
A. Yes.
Q. I'd like you to turn to Exhibit 47, Plaintiff's Exhibit 47.
A. Yes.
Q. Could you turn to the summary of surveillance. It starts at Page 00838.
A. I have it, yes.
Q. Did you prepare this portion of the report?
A. No, I didn't.
Q. Do you know who did?
A. Investigator Hester.
Q. When performing time sheet investigations or others involving surveillance, do you typically know what the employee looks like when you commence surveillance?
A. No.
Q. In Ms. Vega's case, did you eventually learn what she looked like?
A. Yes.
Q. And was she the same person that you had seen during the course of your surveillance?
A. Yes.
Q. When you're conducting surveillance, you said you first pull information about the vehicle that the person is driving.
When you're conducting surveillance, do you typically look for the vehicle?
A. Yes.
Q. And do you make any assumptions about that vehicle?
A. No.
Q. You had testified that there were at least some surveillances where you saw Ms. Vega or the vehicle leave the residence and then arrive at Bessemer Park; is that correct?
A. That's correct.
MS. SIMMONS-GILL: Object, leading, your Honor.
THE COURT: Overruled.
BY MS. HOLZHALL:
Q. When you were surveilling Ms. Vega, was it your experience that she typically parked in the same place at Bessemer Park?
A. Majority of the time, yes.
Q. Ms. Simmons-Gill had asked if you had consulted with Lydia Vega's area manager or her regional manager prior to completing your investigation. Do you recall that?
A. Yes, I do.
Q. Do you typically do that when investigating employees for time sheet violations?
A. No.
Q. Do you consider any time sheet falsification to be a theft of time?
A. At the beginning of our investigation, we can't assume anything. We just gather the information, gather the facts. And once we get that, we just pass it over to HR.
Q. Do you determine what charges an employee is given a corrective action meeting on if that's what it comes to?
A. No, we don't.
Q. Do you have any input into the discipline that's given to an employee?
A. No, we don't.
Q. Do you have any personal knowledge of what happened to
Ms. Vega after you submitted the report?
A. No, I don't.
Q. Ms. Simmons-Gill had asked you about a number of other employees that you had investigated.
A. Yes, she did.
Q. There was Mr. Rivers?
A. Yes.
Q. And his report is Exhibit 195, Plaintiff's Exhibit 195?
A. Yes, I see it.
Q. Now, did you prepare this report?
A. Yes, I did.
Q. And does the report include a summary of surveillance?
A. Yes, there are.
Q. Did you — did you prepare that summary of surveillance? If you turn to, it's in the lower left, CPD 06268.
A. I have it.
Q. Did you prepare that?
A. Yes, I did.
Q. Is that a little bit different format than is on
Exhibit 47 —
A. It is.
Q. — that Mr. Hester performed or prepared?
A. It is.
Q. What was Mr. Rivers' ethnicity?
A. African-American.
Q. And did you sustain the charge of time sheet falsification against Mr. Rivers?
A. Yes, I did.
Q. Did you have any input into whether he would be disciplined?
A. No.
Q. What did you do with your report about Mr. Rivers once it had been completed?
A. Once I completed it, I hand it over to my director, Maria Garcia. And from there, I don't know where it went, HR. But I handed my investigation, once it was completed to Maria Garcia, who was the general counsel for Chicago Park District at that time.
Q. And when you investigated Mr. Rivers, did you pull his time sheets?
A. Yes, I did.
Q. Did you pull the time sheets before you began the investigation?
A. No.
Q. And did you go to his park after you completed the surveillance?
A. Yes, yes.
Q. And did you ask him for the logbook?
A. Yes, we did.
Q. And was Mr. Rivers' investigation typical of the investigations you would conduct into time sheet issues?
A. Standard, typical, yes.
Q. Did you run a LEADS report on Mr. Rivers?
A. Yes, I did.
Q. And is that in your report that's Exhibit 195?
A. Yes, it is.
Q. And that's at CPD 06267?
A. She did.
Q. How did Ms. Vega react to you? Did she seem upset?
A. No, she didn't.
Q. Did she seem frightened?
A. No, she didn't.
Q. Did you find the complaint against her to be sustained?
A. It was not sustained.
Q. How many other investigations were you conducting while you were investigating Ms. Vega for time sheet issues?
A. About six to seven other ones.
Q. Did your investigation of Ms. Vega vary from others you've done because of her Hispanic heritage?
A. No.
Q. Did you follow the same general procedure you would for an African-American?
A. Yes.
Q. Did you follow the same procedure you would for a Caucasian?
A. Yes.
Q. Same general procedure you would for an Asian or native American?
A. Same procedure.
Q. How many surveillances did you typically conduct when conducting a time sheet investigation?
A. Pardon me? receiving a piece of paper like this?
A. It's possible. We can get word without this actual paper being in front of us.
Q. Okay. Is it correct that you — that in the Lydia Vega investigation, do you recall whether you entered a sustained report in connection with time sheet falsification?
A. No, because I didn't write this, and I didn't have this sheet.
Q. So you don't know whether this was sustained or not?
A. It was referred to management, and I found out later that she was terminated.
Q. Okay. So you don't know why she was terminated?
A. She was terminated based off of investigation of time sheet fraud regarding our reports, but as far as this — me putting sustained and writing this on here, I did not do that.
Q. Okay. Is there anything in the report that's before you, PX 47, that indicates to you that you sustained a finding of time sheet falsification or —
A. Regardless of our findings, it still has to be looked upon. We just pass the information. So I'll say it again. It was referred to management. I didn't write this sustained with this sheet here.
Q. You didn't — you did not write Exhibit 58. I understand that, sir.
You did enter all of the dates and times on Exhibit
H, the last three pages of Exhibit 47, correct?
A. Yes.
Q. And those were dates on which you found — what did you — what did you find on those dates?
. Those were dates that were in question regarding Ms. Lydia Vega.
Q. So they were just in question?
A. In question, meaning that we had a problem with either finding her or discrepancies with her time sheet regarding the videos and what we actually saw.
Q. So do you have any idea whether Ms. Vega was not at work on the times she signed in on any of these days?
A. According to when we saw her leaving XSport and the time that she put on her time sheet, yes.
Q. On which days would that be, sir?
A. Okay. For instance, I guess, attachment H, I'm just going to give you an example.
Q. Let's go — attachment H? That's fine. First page or the second page.
A. Are there two pages?
Q. I'm sorry, there are three pages actually.
A. I'm sorry, okay, well —
Q. 892, 893 and 894.
A. Okay. For instance, January 18th, 2012, it shows 10:41 she departs XSport, and it takes approximately 40 to
MS. SIMMONS-GILL: Object, leading.
THE COURT: Overruled.
BY THE WITNESS:
A. I'm sorry. Say it again.
BY MS. HOLZHALL:
Q. So you wouldn't be likely to mistake another maroon Chevy TrailBlazer for Ms. Vega's during the course of surveillance?
A. That's correct.
Q. Were there any dates when you followed Ms. Vega from her residence or XSport Fitness all the way to Bessemer Park?
A. Yes.
Q. Do you recall when those were?
A. I don't recall the exact dates, but I do remember on two occasions that we followed her straight to the park because I believe one of the part-time guys wasn't working that day. They usually on the other end surveilling. And we went straight through, didn't lose sight of her vehicle the whole time.
Q. And what route did she take?
A. I believe it's the Kennedy and then she got on Lake Shore Drive. So it's quite a drive. It takes about 40 to 45 minutes. There's no way you can get there in 15 or 20 minutes even if there was no traffic.
Q. Was there any construction that day you followed her?
A. Yes.
Q. Did you ever learn who made the hotline calls about
Ms. Vega's time sheet issues?
A. No.
Q. Do you know a person by the name of Shreece Childs?
A. Yes.
Q. Did you know her at the time that you were investigating Ms. Vega?
A. No.
Q. When did you meet her, if you recall?
A. I met Shreece — she was at another park as a supervisor at the time. And it was a — regarding an employee, so I had to speak to her regarding an employee.
Q. That was not when she was at Bessemer Park; is that correct?
A. That's correct.
Q. Did you know Lydia Vega when you began the investigation?
A. No.
Q. Did you know who she was?
A. No.
Q. Did you contact her to say we're going to be investigating you for time sheet issues?
A. No.
Q. Would you ever contact somebody that you were investigating for time sheet or residency or the like to let them know that they were under investigation?
A. Yes.
Q. So you passed that on to management, correct?
A. That's correct.
Q. Do you consider your investigation of Ms. Vega to be relatively typical of time sheet investigations you've done?
A. Yes.
Q. Would you — did it begin in the standard fashion or typical fashion?
A. Yes.
Q. For a time sheet investigation, would you do surveillance of the employee?
A. Yes.
Q. Would that — would it matter whether they were white or African American or Hispanic or Asian?
A. No.
Q. Is there any set number of surveillances you do?
A. No.
Q. What would dictate the number of surveillances you might do for any given employee?
A. Well, it just varies because a lot of times, you don't find them right away. Sometimes you really don't know where they are. And that could be a month, two months before you actually see them.
Q. Was that one of the difficulties with surveilling Ms. Vega?
A. Yes.
Q. What specifically was creating that difficulty?
A. Well, it was a few reasons. She was parked across from a school, which there was no parking during school hours, so there was really only one side you could park on. That was the east side of the street. And it was limited parking. So I guess she elected to park in the garage, which was initially the problem at first in finding her. I believe Leroi couldn't find her. I guess he was on one side of the alley and then that's when I end up staying on the other side of the alley. That's when we actually saw her.
Q. So the garage was located in an alley?
A. Yes.
Q. When conducting a time sheet investigation, would you typically pull Secretary of State information about the employee's vehicle?
A. Yes.
Q. Would you periodically do that throughout the investigation?
A. Yes.
Q. Why?
A. They might change vehicles, maybe get a new license plate. It just varies.
Q. And you would perform these check-up pulls of Secretary of State information regardless of the race or ethnic background looking at.
Q. Okay. So Leroi wrote that one?
A. Yes.
Q. And he wrote the report for Ms. Vega; is that correct?
A. That's correct.
Q. How many times did you surveil Mr. Rivers? (Brief pause.)
BY THE WITNESS:
A. 20 surveillances.
BY MS. HOLZHALL:
Q. And how many — and how many times did you determine that there were discrepancies on his time sheets?
A. On 14 occasions.
Q. Do you recall what happened to Mr. Rivers?
A. He was terminated.
Q. Was Mr. Rivers African American?
A. Yes, he was.
Q. Do you recall investigating a Dina Rutledge?
A. Yes, I do.
Q. What was Ms. Rutledge's position with the Park District, if you recall?
A. I believe she was a park supervisor.
Q. And do you recall when you investigated her?
A. No, I don't.
Q. I'm going to hand you — and this is just to refresh your recollection. I'd like you to take a look at it and tell me if that does refresh your recollection about Ms. Rutledge?
A. Yes, it does.
THE COURT: Ms. Holzhall, you handed him exhibit?
MS. HOLZHALL: It's just to refresh his recollection.
THE COURT: And is it marked?
MS. HOLZHALL: No, it's not marked. We can —
THE COURT: So Defense No. 1?
MS. HOLZHALL: Sure. Defense No. 1 actually is not being used right now.
BY MS. HOLZHALL:
Q. Please take a look at Defense No. 1 and tell me if that refreshes your recollection about Ms. Rutledge?
A. Yes.
Q. And was Ms. Rutledge — what race or ethnicity was she?
A. African American.
Q. Did you follow the same general procedures investigating Ms. Rutledge as you did investigating Ms. Vega?
A. Yes.
Q. Did you get Oracle information about her residence?
A. It was pulled. I didn't actually pull it, but I did receive information about where she does live.
Q. Is that typical in investigations, that you do get Oracle information maintained by the Park District?
A. Correct.
Q. Did you check Secretary of State records?
A. Yes.
Q. Did you conduct surveillance?
A. Yes.
Q. Did you check the log book from her park?
A. Yes.
Q. And her — you pulled her time sheets and looked at those?
A. Yes.
Q. Did you interview her?
A. Yes.
Q. And then did you prepare a report?
A. Yes.
Q. How many surveillances did you conduct of Ms. Rutledge?
A. 27.
Q. And how many times did you find that there were discrepancies on her time sheets?
A. Four occasions.
Q. What did you do once you had completed your report on Ms. Rutledge?
A. I turned it over to — I believe it was Alison Perona at the time. It was a new counsel.
Q. So did she take over for Ms. Garcia?
A. Yes, she did.
Q. Do you know if Ms. Rutledge is still employed by the Park District?
A. No. Well, I'm not there anymore; but while I was there, she was not employed.
Q. Ms. Simmons-Gill had asked you about portions of videos that weren't reflected in your report for Ms. Vega, Plaintiff's Exhibit 47?
A. Yes.
Q. Did you rely on those pieces of video at all in preparing your report?
A. No.
Q. And you never gave information about those videos to management with your report?
A. No.
MS. HOLZHALL: One moment, please. (Brief pause.)
MS. HOLZHALL: That's all I have for you, Officer Hester.
THE WITNESS: Thank you.
MS. HOLZHALL: For the record, Defendant's 1 is Bates stamped 05462 CPD through 05478 CPD.
THE COURT: Ms. Simmons-Gill, whenever you're ready.
MS. SIMMONS-GILL: Yes.
REDIRECT EXAMINATION
BY MS. SIMMONS-GILL:
Q. Officer Hester —
A. Yes.
these actions and go to places and participate in meetings and tournaments and things like that and procure items for the park.
Q. And what was Ms. Saieva's attitude?
A. Accusatory, as if this was a foregone conclusion because investigators had made statements to her.
Q. Was she interested in the packet of information?
A. She was not engrossed in the packet of information, I can say that.
Q. Thank you.
It was your impression that it was a foregone conclusion that Ms. Vega was going to be — that some discipline was going to be issued?
A. Yes.
Q. Have you been in many investigative meetings with — I'm sorry — many CAMS with Ms. Saieva?
A. Yes.
Q. Does she have different attitudes toward different employees, or is it all the same?
A. I can say it can vary.
Q. Pardon?
A. It can vary.
Q. It can vary?
A. Yes.
Q. I think terminology I once heard you use was picks and seen somewhere else very specifically. It wasn't just a random date or a random time. So there was a — some sort of foundation for the allegation, if you will.
Q. Have you represented other employees accused of time sheet irregularities in hearings?
A. Yes.
Q. What is the typical time that such investigation would take?
A. I don't believe there is a standard typical time.
Q. Thank you.
During the meeting you had with Ms. Vega and Mr. Hester and Mr. Catlin that you testified about, do you recall that?
A. Yes.
Q. The investigative meeting, it was on the third floor?
A. Yes.
Q. Okay. You are not aware of anything that the investigators said that would make you believe they were prejudiced towards Hispanics, were you?
A. That I can recall from them saying in that meeting?
Q. Correct.
A. I don't know.
Q. Can I please direct your attention to your deposition again, Page 74.
A. Sure.
Q. Okay. Page 74, line 2: Question, asked by Mr. Brown:
"At this meeting with Vega and the investigators, did they say anything that you took to believe that these investigators were prejudiced towards Ms. Vega as a Hispanic?
"Answer: Not to me, but I don't know what they said to each other."
Were you asked that question, and was that your answer during your deposition?
A. Yes. I don't know what they said to each other, yes.
Q. Thank you.
Was that your answer —
A. Yes, it was my answer, yes.
Q. Thank you.
Do you have any idea if the Park District ever followed up on the information that Ms. Vega provided to them regarding her whereabouts during her CAM meetings?
A. There was no good-faith effort by the Park District to show us that there was any further investigation into what Ms. Vega had offered.
Q. Do you have any personal knowledge if they did anything or not?
A. No.
Q. Thank you.
Ms. Vega, you said you met with Ms. Vega before you had the meeting with the investigators. Do you recall that?
A. Yes.
Q. And during that meeting, she handed you or showed you Exhibit 61, correct?
A. Correct.
Q. Did you do anything to confirm the information that is found in Exhibit 61 to know if it was truthful?
A. I believe I called some of the people mentioned in there.
I do not believe that I got witness statements written.
Q. Who did you call?
A. I don't recall who I called. There are multiple people who responded to multiple meetings. There are area meetings in here. There are people who would be supervisors from all over the district.
Q. And you're testifying today that you called all these people to confirm —
A. Well, I don't say I called all of them.
Q. Okay.
A. No.
Q. Do you know how many you called?
A. I do not.
Q. Do you know when you called them?
A. I could not give you a date.
Q. Do you remember what they said to you?
A. I remember speaking to Ms. Vega and people confirming
