Colbert v. Ill. Dep't of Transp.

LLOYD COLBERT, Plaintiff, v. ILLINOIS DEPARTMENT OF TRANSPORTATION and JAMES McKAY, Defendants.

No. 17 cv 6237

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

February 27, 2020

Judge Rebecca R. Pallmeyer

MEMORANDUM ORDER AND OPINION

After a physical altercation between Plaintiff Lloyd Colbert and his subordinate, Darrin Monroe, both men were dismissed from their employment with Defendant Illinois Department of Transportation ("IDOT"). Plaintiff, who is African-American, alleges that IDOT discriminated against him on the basis of his race, and that his fight with Monroe is mere pretext for his discharge. Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission in September 2016 in which he alleged he was terminated on the basis of his race and in retaliation for his having filed a complaint with the Illinois Office of the Executive Inspector General ("OEIG") about the incident involving Monroe. Plaintiff then filed this action against Defendants IDOT and James McKay, his direct supervisor, alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. §§ 1981, 1983. Plaintiff also asserts that both Defendants retaliated against him for his OEIG report, in violation of the Illinois State Officials and Employees Ethics Act, 5 ILCS 430/15-10. Defendants contend they had non-discriminatory reasons for disciplining and removing Plaintiff, and have asked the court to enter summary judgment on all counts [51]. The parties' failure to identify the person(s) who made the discharge decision for Plaintiff complicates the analysis of this motion. For the reasons explained below, Defendants' motion for summary judgment is granted in part and denied in part.

BACKGROUND¹

Plaintiff Colbert was employed by IDOT as a Lead Worker (supervisor) with IDOT's Emergency Traffic Patrol ("ETP") unit until August 19, 2016 when IDOT terminated his employment, allegedly for engaging in a physical altercation with his supervisee, Darin Monroe, one month earlier. (Pl.'s Local Rule 56.1 Additional Statements of Fact ("Pl.'s SOF") [66] ¶ 1.) The conflict between Plaintiff and Monroe began in April 2016 when Plaintiff placed a memorandum in the window of his office reminding ETP employees of IDOT's existing policies regarding relocating disabled vehicles on the roadway. (Id. ¶ 4.) Plaintiff claims that Monroe had previously violated the policy (Colbert Dep. 80:1-10, Ex. B to Def.'s SOF), and Plaintiff believes he was angry about the fact that Plaintiff had reprimanded him for that earlier violation. (Pl.'s SOF ¶ 4.) Whatever the reason, Monroe allegedly took issue with the memorandum, leading to a heated conversation with Plaintiff. (Id.) Plaintiff testified that he interpreted some of Monroe's statements and actions during this confrontation as threats. (Pl.'s Resp. [66] to Def.'s Local Rule 56.1 Statement of Facts ("Def.'s SOF") [54] ¶¶ 11-13.) The day of the conversation, Plaintiff wrote an email to James ("Jim") McKay, assistant to the patrol manager and Plaintiff's direct supervisor,² describing the incident with Monroe, and followed up the next day.³ (Pl.'s SOF ¶¶ 5, 7; Def.'s SOF ¶¶ 7, 16.) Plaintiff's usual manner of writing up subordinates for rule infractions was to send an email to the patrol manager, Michael Schivarelli, with a copy to McKay. (Def.'sSOF ¶ 6.) If necessary, those men would then elevate the matter to the Personnel Manager (at the time, Georgina Syas) to decide whether disciplinary action should be taken. (Id. ¶ 8; Colbert Dep. 57:17-58:3.) In response to Plaintiff's follow-up conversation, McKay allegedly told Plaintiff that he (McKay) would "handle it." (Pl.'s SOF ¶ 5.) After this incident, Monroe apologized to Plaintiff, and Plaintiff accepted the apology. (Def.'s SOF ¶ 23.) There was no further tension between Plaintiff and Monroe until July 2016. (Id. ¶ 24.)

I. The Physical Altercation

In July 2016, Monroe arrived at work for a sixth consecutive day and learned that he had been assigned to a new patrol area. (Exs. G, P to Def.'s SOF.) As Colbert explained in his deposition, ETP workers are assigned to monitor different stretches of highway in the Chicago area. (Colbert Dep. 61:10-13.) For example, patrol area 4/5 covered the area of the Kennedy Expressway (I-190, I-90, I-94) and the Dan Ryan Expressway (I-90, I-94) between Fullerton Avenue and 71^st Street. (Id. 97:11-14.) ETP employees who work a sixth straight day are ordinarily permitted to choose their patrol areas for that day; Monroe went to the office to find out why this practice had not been followed. (Id.) The parties dispute what happened when Monroe reached the office. According to Plaintiff, Monroe began arguing with Plaintiff about the changed assignment and insulted Plaintiff, calling him a "punk pussy motherfucker" while leaning over Plaintiff's desk. (Pl.'s SOF ¶ 9; Pl.'s Resp. to Def.'s SOF ¶ 27.) Plaintiff responded by telling Monroe to go home. (Id.) Monroe did exit the office, and as Plaintiff began to sign Monroe out of work on the sign-in sheet in his office, Plaintiff asserts, Monroe returned to the office, bumped Plaintiff with his chest, and punched Plaintiff's right cheek. (Pl.'s SOF ¶ 9.) Plaintiff grabbed Monroe's wrist and pushed Monroe away. (Id.) Dan Giglio and Kevin Olson, two other IDOT employees who had entered the office, grabbed Monroe to separate him from Plaintiff, and after Plaintiff pushed Monroe away, Giglio, Olson, and Monroe all fell to the floor. (Id.)

On the day of the incident, July 8, 2016, Darin Monroe recorded his account of the altercation in a memorandum to James McKay as part of the investigative process. (See Ex. Pto Def.'s SOF; see also Personnel Policies Ch. 12-2(A), Ex. 9 to Pl's SOF.) Monroe also wrote his version of the events in a July 8, 2016 witness report to the Illinois State Police. (Ex. G to Def.'s SOF.) Monroe wrote that Plaintiff had raised his voice and told Monroe that if he did not like the changed assignment, he could go home. (Ex. P to Def.'s SOF.) Monroe recalled that he asked Plaintiff "why [Plaintiff was] acting like a woman," and that Plaintiff responded by jumping out of his seat behind the desk, charging at Monroe, bumping him in the chest, and pushing him. (Id.) At that point, Monroe wrote, Giglio and Olson came in from the hall and pulled Monroe away from Plaintiff, but as they were pulling him away, Plaintiff punched Monroe in the face, and Monroe and the two other men fell to the floor. (Id.) Because of the fall, Monroe felt a sharp pain in his leg and was not able to stand on his own. (Id.)

Dan Giglio and Kevin Olson, who witnessed the incident, also wrote and signed statements describing the altercation. (Ex. F to Def.'s SOF.) Giglio reported that he heard and saw Plaintiff and Monroe arguing, yelling, and pushing each other, so he and Olson got between the men to separate them. (Id.) Giglio attempted to exit the office, but when Plaintiff and Monroe resumed arguing and pushing each other, Giglio again got between the two and then, "during all the pushing," Giglio, Olson, and Monroe tripped over the rug and fell to the floor. (Id.) Olson's account is similar: Olson recalled that he was in the office at the time the argument began, but prior to its escalation to a physical altercation, saw Giglio coming down the hallway and went into the hallway to speak to Giglio. (Id.) As they returned to the office, the argument between Colbert and Monroe "escalated to push and shoving." (Id.) Olson recalls that he and Giglio tried to separate Colbert and Monroe, but that he (Olson), Monroe, and Giglio tripped over the rug and fell to the floor. (Id.) Olson reports that "hands [and] arms were going all over so I don't know if they were punches," but he did see Colbert and Monroe "bump each other in the chest." (Id.)

Plaintiff does not dispute that Monroe was taken to the emergency room by ambulance after the altercation. (Pl.'s Resp. to Def.'s SOF ¶ 41.) Nor does Plaintiff dispute that he pushed Monroe, though he claims that it was an act of self-defense. (Id. ¶ 30.) Plaintiff alsoacknowledges that police reports were filed by Illinois State Police officers who were present at the ETP building at the time of the altercation, and who had come to the office to see what was going on. (Id. ¶¶ 31, 41.) Neither Plaintiff nor Monroe was charged criminally.

II. IDOT Policies

IDOT's Personnel Policies Manual lays out the Department's policy regarding disruptive conduct and violence in the workplace. (Personnel Policies Chs. 10, 12.) Plaintiff admits that he received a copy of the Personnel Policies. (Pl.'s Resp. to Def.'s SOF ¶ 65.) The workplace violence policy prohibits "violence, threats of violence, harassment, intimidation, and other behaviors which by intent, action, or outcome threatens, frightens, harms or endangers the safety of others." (Personnel Policies Ch. 12-1.) The policy warns that employees who are violent or who threaten violence "may be removed from the premises and may be subject to disciplinary action up to and including discharge, criminal penalties, or both." (Id.) Plaintiff characterizes this as a "zero-tolerance" policy (Pl.'s SOF ¶ 16) that was not enforced evenly, but admits that the words "zero tolerance" do not appear in the policy itself. (Pl.'s Resp. to Def.'s SOF ¶ 64.) The Personnel Policies also prohibit disruptive conduct, which includes "instigating or participating in disruptive behavior, horseplay, interrupting work or impeding the work effort of others." (Personnel Policies Ch. 10-3(E).)

The workplace violence policy also specifies the investigative process that should follow an incident of violence. Any employee who witnesses workplace violence must report it to his supervisor and must subsequently submit a written statement describing the incident. (Id. Ch. 12-2.) Supervisors are required to communicate to others up the chain of command...